Queensland criminalises revenge porn
The issue of revenge pornography (‘revenge porn’) has received considerable attention in the press, not only in Australia but worldwide.
Broadly, revenge porn refers to sharing, revealing or distributing sexually explicit images or videos of a person through an internet service without that person’s consent, usually with the motive of causing humiliation, embarrassment and distress.
Whilst the conduct may occur in different circumstances and the motivations for distributing the images vary, the perpetrator is often a former partner of the victim, and the victim undoubtedly suffers long-lasting and traumatic effects.
Australia has a matrix of civil and criminal laws relating to image-based conduct over the internet. Although national laws presently exist to prohibit the use of a carriage service to offend, harass or menace another person, these laws have not effectively or specifically been utilised to target the issues associated with revenge porn.
Various state and territory governments are considering or have passed legislation that criminalises revenge porn, with Queensland now introducing new laws. The policy objective of the new laws is to fill a current gap by creating a specific offence regarding non-consensual sharing of intimate messages or threats to send intimate images. The offence relates to any intimate image no matter how it is captured or made.
New laws to criminalise revenge porn
The Criminal Code (Non-consensual Sharing of Images) Amendment Act 2019 incorporates provisions into the Criminal Code creating new offences.
Distributing an intimate image
A person who distributes an intimate image without the consent of one person in circumstances that would (reasonably) cause the other person distress will be guilty of an offence.
It does not matter whether the person distributing the image intends to cause distress or actually causes the other person distress.
Threats to distribute an intimate image or prohibited visual recording
A person who makes a threat to another person to distribute an intimate image or prohibited visual recording without the consent of the other person, in circumstances where the threat would (reasonably) cause distress to the person depicted (or person to whom the threat is made) and the threat is made in a manner that (reasonably) would cause the person to fear the threat will be carried out will be guilty of an offence.
It does not matter whether the intimate image or prohibited visual recording exists when the threat is made or whether the person who makes the threat intends to cause, or actually causes the fear.
In determining whether a person would reasonably be caused distress or fear the circumstances, as relevant to each offence, will be considered including:
- the relationship, if any, between the parties;
- the circumstances surrounding distribution of an intimate image;
- the extent to which distribution of an intimate image interferes with a person’s privacy;
- the circumstances surrounding the threat to distribute an intimate image or prohibited visual recording.
A child under the age of 16 years is considered incapable of giving consent.
Penalties
Offences under the new laws are punishable by up to three years’ imprisonment.
A court may also order the person convicted to take reasonable steps to remove, delete or destroy an intimate image or prohibited visual recording. Failure to comply with such an order is punishable by up to two years’ imprisonment.
The maximum penalty for the existing offences of observing or recording a person in breach of privacy and distributing prohibited visual recordings has increased from two to three years’ imprisonment.
What is an intimate image?
An ‘intimate image’ of a person is a still or moving image that depicts:
- the person engaged in an intimate sexual activity that is not ordinarily done in public; or
- the person’s genital or anal region, when it is bare or covered only by underwear; or
- if the person is female or transgender or an intersex person who identifies as female, the person’s bare breasts.
The definition extends to images that are altered to appear as above or digitally obscured to portray that person in a sexual or intimate manner. Essentially, the definition captures images that are photoshopped or digitally modified if they otherwise represent the definition of an intimate image as described above.
What is a prohibited visual recording?
A ‘prohibited visual recording’ of a person is:
- a visual recording of the person, in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy; or
- a visual recording of the person’s genital or anal region, when it is bare or covered only by underwear, made in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region.
What is consent?
Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. The Act makes it clear that a person does not consent to the distribution of an intimate image if the person is under 16 years. A person does not consent if he or she is threatened or forced to do so.
Defences
It is a defence to a charge of an offence under the new laws if the conduct was for a genuine artistic, educational, legal, medical, scientific or public benefit purpose and the conduct was, in all the circumstances, reasonable for that purpose.
Conclusion
The internet provides an efficient means of producing and disseminating information – once loaded images can leave a digital footprint and for the victims of revenge porn, long-lasting torment.
Australia’s laws have been hard-pressed to keep up with technology and the matrix between state and federal legislation to deal with illicit conduct over the internet is arguably inconsistent and patchy.
It is anticipated Queensland’s new laws will give victims and potential victims of revenge porn better protection and some redress in an area that has been notoriously difficult to regulate.
Victims of revenge porn should contact the Police and are encouraged to obtain referral from their general practitioner or support groups for emotional assistance.
If you have been charged with a criminal offence you should obtain professional advice so you understand your legal rights.
If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.
