By Sahar Adatia and Jimmy Singh
Attorney General Mark Speakman (https://www.nsw.gov.au/news-and-events/news/revenge-porn-is-a-crime/) has encouraged victims to report instances of revenge porn, which is now considered a criminal offence in NSW attracting heavy penalties, including full time prison- to reflect the seriousness that the community views this behaviour.
Advances in technology has its benefits, but it also has a dark side which is seldom discussed.
To protect the community, the law needs to change and adapt to the good, the bad and the ugly that come with advances in technology and communication.
Facebook provides instant access to our world.
An image posted onto Facebook gives access to almost anyone in the world instantaneously.
Websites can and have been created for the same purposes.
Significant harm can result if this kind of technology is misused.
Recording intimate images or posting intimate images onto the internet without the consent of the person depicted in the photo is often referred to as ‘revenge porn’. It’s usually done as an act of revenge to humiliate or punish with devastating consequences to reputation, mental health and privacy.
In the past two years, the incidence of revenge porn has more than doubled, and it now affects more than one in five Australians (https://www.news.com.au/national/revenge-porn-now-affects-more-than-one-in-five-australians/news-story/4213b426af63470a2e411e3741b430f7). Of these, many experience horrendous and distressing impacts associated with the devastating breach of privacy. These stretch from immense emotional trauma, breakdown of relationships and damaged reputation to even destruction of careers.
Until recently, existing laws failed to adequately capture the social and psychological harm triggered by online offenders in using non-consensual sexual imagery to knowingly cause harm and distress to victims.
However, as the number of victims of revenge porn continues to grow around the nation and too many end up with shattered lives, Australia is starting to slowly get its act together with the introduction of the revenge porn laws attracting heavy penalties.
For the first time in Australia, changes have been proposed to the current legislation to now see the consequences of recording and distributing intimate images of a person without consent more severe than ever before – with penalties of up to $105,000 set to be introduced for individuals and a boost in jail time from three to seven years.
The Widespread Problem of Revenge Porn
According to a comprehensive 2017 university report, Not Just ‘Revenge Pornography’: Australians’ Experiences of Image-Based Abuse’ (https://www.rmit.edu.au/content/dam/rmit/documents/college-of-design-and-social-context/schools/global-urban-and-social-studies/revenge_porn_report_2017.pdf), the incidence of revenge porn is rapidly on the rise, with one in five Australians affected, and one in three aged between 16 and 19 reporting the highest rate of abuse.
The report, based on the findings of a study conducted by RMIT and Monash University, involved a survey of more than 4,200 Australians and found that the insidious trend had more than doubled over the past two years.
The study revealed that among those most at risk included disabled and indigenous people, along with those who had willingly shared sexual selfies. At the same time, one in 10 people who had never shared a naked photo of themselves were also found to be targeted.
Other findings from the survey of the damaging behaviour included that victims of image-based abuse experience high levels of psychological distress, perpetrators of image-based abuse are most likely to be male and known to the victim, and women are more likely than men to fear for their safety due to such exploitation.
According to Chief researcher Dr Nicola Henry, revenge porn has become a significant problem in Australia over a short period of time. Of concern, the number of victims has also quickly increased since the group’s 2014 study.
“This isn’t just about revenge porn,” Dr Henry said.
“Images are being used to control, abuse and humiliate people in ways that go well beyond the relationship-gone-sour scenario.”
According to Dr Henry, the detrimental impact of revenge porn on the victim’s life can be vast.
Results from the study uncovered that eighty per cent of victims reported high levels of psychological distress, depression and anxiety disorder. Almost half said they feared for their safety.
NSW Government Tightens Laws on Revenge Porn
Against increasing numbers of revenge porn cases, this week, under new laws designed to crack down on online creeps and implement strong and proactive measures that take seriously the harms of image-based abuse, the government announced that people who share revenge porn could now spend up to seven years in prison.
Under the government’s proposed changes, fines of up to $525,000 for corporations and $105,000 for individuals can now also be levied on those who share intimate images of people without their consent.
Under the current Legislation, the maximum jail sentence is three years, with a fine of up to $11,000.
The new proposed laws passed the Senate in February and were introduced to the lower house on Wednesday night with amendments creating two new offences for perpetrators.
One carries a prison sentence of up to five years, while repeat offenders of this behaviour could face up to 7 years imprisonment.
Communications Minister Mitch Fifield emphasised that the amendments are aimed to protect members of the community while sending a powerful message.
“The non-consensual sharing of intimate images is unacceptable in our society,” he said.
“We want to have a specific aggravated offence that sends a clear message to creeps that it is not on.”
The tighter legislation is intended to elucidate that the ordinary acceptable standard of behaviour that applies in the offline world also applies in the online world.
If you’re about to be sentenced in court for revenge porn offences, you should look up a sample character reference letter for court sentencing (https://www.criminaldefencelawyers.com.au/criminal-law/good-character-reference-guide/).
Enhanced Power of the eSafety Commissioner under Amended Laws
As part of the proposed new laws, extra power is given to the eSafety Commissioner to handle complaints. The eSafety Commissioner’s office is where victims can make these complaints to.
The body’s power will extend to being able to demand that these intimate images be removed for the benefit of people who initially gave their consent for the images to be shared but later withdrew that consent.
As of early June, the eSafety Commissioners’ office received up to 119 inquiries about the abuse of images and two hundred and forty-one reports in relation to photos across 385 websites.
79% of the time, the images shared illegally were of women.
Hope for Victims of Revenge Porn
As revenge porn continues to make headlines both in Australia and internationally, Attorney General Mark Speakman has spoken out of the crime and the revised consequences of the online behaviour.
He has encouraged victims of intimate image abuse to report these offences to police, ensuring that under the new laws, perpetrators can no longer get away with such disgraceful demeanour.
“No one should ever use intimate images to threaten, control or humiliate victims, which is why the NSW Government introduced this legislation to ensure perpetrators are held to account.
“The new laws shift the power away from vengeful ex-partners and manipulative predators and help victims regain privacy and dignity.”
This assurance, however, has not been met without criticism.
Liberal backbencher Andrew Wallace, while welcoming the crackdown, offered a simpler solution.
“I would suggest that people just don’t take photos of themselves in compromising positions or allow others to do likewise,” he said.
“It’s not worth the risk, and, you know what, it’s not rocket science.”
In some recent cases of revenge porn in NSW, Magistrates are imposing terms of imprisonment although wholly suspended on conditions of good behaviour. A suspended sentence nsw (https://www.criminaldefencelawyers.com.au/blog/new-penalties-to-be-introduced-in-nsw/) is a type of prison sentence where you remain in the community, not jail.
The Penalties for Threatening to Distribute or Record Intimate Images Without Consent in NSW
There’s a fine of up to $11,000 and/or 3 years imprisonment to anyone who threatens to record, or threatens to distribute, an intimate image of another person without that other person’s consent and with the intention of causing the other person fear that the threat will be carried out.
You will face this maximum penalty even if the other person didn’t actually fear from your threat, or where the intimate image (the subject of the threat) doesn’t exist.
The Penalties for Distributing or Recording Intimate Images Without Consent in NSW
There’s a fine of up to $11,000 and/or 3 years imprisonment for intentionally ‘recording’ or ‘distributing’ an ‘intimate image’ of another person without that person’s consent, where you either knew there wasn’t consent or you were ‘reckless’ as to whether the other person consented (This is reflected in section 91Q and section 91P of the Crimes Act 1900 (NSW) (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s91p.html)).
You can be reckless as to whether the other person consented to the recording or distribution of the image in one of the two following ways:
- Where you weren’t sure, but turned your mind to the possibility that the other person wasn’t consenting, and you recorded the intimate image anyway; or
- Where you simply failed to even turn your mind to even consider whether or not the other person was consenting, yet you continued to record the intimate image anyway, where the risk that the other person wasn’t consenting would’ve been obvious.
What Doesn’t Count as Consent under the Law?
The law considers there to be no consent to the recording or distribution of an intimate image in the following circumstances:
- If the person depicted in the image consented due to being unlawfully detained.
- The person depicted in the image consented due to threats of terror or force.
- The person depicted in the image didn’t have an opportunity to consent i.e. where he/she was asleep or unconscious.
- The person depicted in the image is under age i.e. under 16 years old.
- The person depicted in the image doesn’t have the mental capacity to consent due to a mental condition or cognitive impairment.
- Where the person depicted in the image previously consented to its recording or distribution on a particular occasion, that doesn’t mean that he/she has consented to it happening on another occasion.
- Where a person depicted in the image consented to the recording or distribution to a particular person, that fact doesn’t mean that another person also has the same consent.
Defences to “Revenge Porn” Charges
You cannot be guilty of these revenge porn charges if any of the below defences apply:
- Honest and reasonable belief as to consent: for offences of recording or distributing intimate images, this defence is available where you honestly believed that the other person depicted in the image consented to the recording or distribution of the image in circumstances you had reasonable grounds to have held that belief. Whether your belief was held on reasonable grounds isn’t judged on what belief a hypothetical person in your shoes would have held. It can be inferred from a combination of the pieces of evidence in the case.
- Reasonable person would consider it acceptable: a reasonable person would consider the recording or distribution of the image as acceptable in light of the nature and content of the image(s), circumstances it was recorded and distributed, age, intellectual capacity, vulnerability of the person in the image, extent the recording or distribution affect the privacy of the person in the image and relationship between the person in the image and the person who took or distributed it.
- Scientific purposes: for recording or distributing offences- It was done for genuine medical or scientific purposes.
- Law enforcement purposes: for recording or distributing offences- It was done by a law enforcement officer for a genuine law enforcement purpose.
- Legal proceedings: for recording or distributing offences- It was required by a court, or otherwise it was reasonably necessary to be done for purposes of legal proceedings.
Can Intimate Images be Removed from the Internet by a Court Order?
Anyone guilty of the revenge porn laws can also be ordered by the court to remove or destroy (within a specified time frame) any intimate image that was recorded or distributed. Failure to take reasonable steps to comply with such a court order attracts heavy penalties under section 91S of the Crimes Act 1900 (NSW) with a term of imprisonment of up to 2 years and/or fine of up to $5,500.
To protect under age young people involved with this kind of behaviour, the law prohibits the prosecution of offenders under the age of 16 years unless the Director of Public Prosecutions approval is gained first.
What is an “intimate image”?
An intimate image includes images showing private body parts, or images depicting someone ‘engaged in a private act’ which a reasonable person would reasonably expect privacy.
What is a “Private Part”?
The law interprets ‘private parts’ as the genitals or anal area (whether bare or covered by underwear). It also interprets it as the breasts whether or not they are sexually developed.
What is a “private act”?
The law interprets ‘engaged in a private act’ as a state of undress, using a toilet, showering or bathing, engaging in a sexual act that isn’t ordinarily done in public or engaged in any other kinds of like conduct.
The criminal law also deals with similar offences to this known as Voyeurism and filming offences. It criminalises the conduct of filming a person engaged in a private act and filming a persons private parts (https://www.criminaldefencelawyers.com.au/criminal-law/offences/sexual-offences/voyeurism-and-filming/filming-persons-private-parts/).
You can direct any further questions on this topic to our office. We have offices with an experienced criminal solicitor Sydney (https://www.criminaldefencelawyers.com.au/), Liverpool, and Parramatta.