National Legal Hotline

1300 636 846

7am to midnight, 7 days

Call our lawyers now or,
have our lawyers call you

Revenge Porn Offences (Tas)

In the last few years, there has been a rising awareness of image-based domestic abuse, known colloquially as “revenge porn”. There has been widespread public pressure on legislators to crack down on perpetrators to discourage this type of abuse. This article explains the legal implications of revenge porn in Tasmania.

Revenge porn is an inaccurate term to describe image-based abuses. These images do not need to be “pornographic”, and the perpetrator is not always motivated by revenge. The perpetrator may be motivated by a range of motives, such as financial incentive, wish for notoriety or social status, or a desire to punish, control, or otherwise harm the victim. The term image-based abuse is preferred to characterise the non-consensual capturing and sharing of intimate images. Image-based abuse only applies to photos and videos of adults. The possession, production and distribution of child exploitation material are criminal offences under the Criminal Code Act 1924, punishable by imprisonment for up to 21 years.

Recognising Image-Based Abuse

Image-based abuse occurs when someone creates or shares an intimate image or video without the consent of the pictured adult. The images may be real photos or digitally altered in some way. It is also abuse for someone to threaten to share intimate images.

Image-based abuse is particularly an issue in the context of domestic and family violence. Victims who are isolated from support networks are vulnerable to harm from this and other forms of abuse. Victims typically experience fear for their safety and multiple forms of victimisation.

The rise in this type of abuse has been traced to the migration of dating to online and telephone communication, especially following the pandemic in 2019. As sexual and nude images were more commonly shared, this gave perpetrators greater access to intimate material for abuse, threats, and blackmail. The eSafety Commissioner noted a rise in people trying to monetise intimate content, including computer crimes involving sextortion scam emails.

Revenge porn laws

There are specific laws that criminalise image-based abuse in other states and territories of Australia, but Tasmania does not yet have a targeted law against this type of abuse. Instead, the Police Offences Act 1935 prohibits someone from observing or visually recording another person without consent in a private place or engaging in a private activity where they have a reasonable expectation of privacy. This applies to taking an intimate photo surreptitiously of another person, such as “upskirting”. The maximum penalty is 50 penalty units or 12 months in prison, or both. Publishing, distributing or having possession of these prohibited images is a further offence punishable by the same penalty. There is an exception for law enforcement officers acting reasonably in the course of their duties, and other people acting reasonably in the course of their occupation.

The Online Safety Act 2021 (Cth) is designed to promote safety online by introducing regulations and mechanisms to remove abusive and harmful online content. Under this Act, an intimate image is defined as a still or moving image that depicts a person’s bare or underwear-covered genital or anal area. For women, transgender, and intersex individuals, it also includes images of their breasts in circumstances when a reasonable person expects privacy.

A person must give voluntary, express, and informed consent to the sharing of their intimate images. This means that a child or an adult without legal capacity cannot give consent.

A person cannot post, or threaten to post, an intimate image of someone online without their consent. When the perpetrator or victim is an Australian resident, it is an offence punishable by 500 penalty units.

This Act requires online platforms to regulate restricted and illegal content, including violent material and nudity. It also prohibits the non-consensual sharing (or threatening to share) of intimate images.

Removal Notice

If a person makes a complaint about a non-consensual intimate image posted online, the Commissioner may issue a written notice to the service provider or perpetrator. This removal notice requires the recipient to take all reasonable steps to remove the intimate image within 24 hours. The Commissioner can also give the hosting service provider a written notice to remove the image. A person must comply with a removal notice to the extent of their capacity. Otherwise, they are in breach and liable for a 500 penalty unit fine.

Commonwealth revenge porn laws

Commonwealth law applies in Tasmania. It is an offence under the Criminal Code 1995 (Cth) to capture private sexual material such as naked pictures of a person who has a reasonable expectation of privacy.  It is also an offence under the Criminal Code for someone to use a telephone, internet service or internet protocol service to menace, harass or otherwise cause offence. The maximum penalty for this offence is three years. More specifically, it is an aggravated offence punishable by five years in prison to commit the underlying offence while transmitting private sexual material. It is a special aggravated offence if the perpetrator has previously received at least three civil penalty orders for breaching conventions of the Enhancing Online Safety Act 2015 (Cth). In that case, the maximum penalty is imprisonment for seven years.

Next Steps

Contact the criminal lawyers at Go To Court for further information on revenge porn offences in Tasmania. If you are a victim of image-based abuse, we can help you document the offence and assist you with filing a report with the police. We can also advise you on how to have the images removed through a request on the eSafety Commissioner’s online portal. Please call 1300 636 846 for legal advice on this issue or any other matter.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
7am to midnight, 7 days
Call our Legal Hotline now