Revenge Porn

On 21 February 2019 the Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Act 2019 (“the Act”) became law. The Act amended the definition section of the Criminal Code (“the Code”), and added a new section 223. Together, the amendments criminalise the distribution – or the threat of distribution – of an intimate image or prohibited visual recording, without the subject’s consent.

Sections 223, 227A, and 227B

Section 223 – Distributing intimate images

(1) A person who distributes an intimate image of another person—

(a) without the other person’s consent; and

(b) in a way that would cause the other person distress reasonably arising in all the circumstances;
commits a misdemeanour.

Maximum penalty – 3 years imprisonment

Section 227A – Observations or recordings in breach of privacy

(1) A person who observes or visually records another person, in circumstances where a reasonable adult would expect to be afforded privacy—

(a) without the other person’s consent; and

(b) when the other person—

(i) is in a private place; or
(ii) is engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act;
commits a misdemeanour.

Maximum penalty – 3 years imprisonment

(2) A person who observes or visually records another person’s genital or anal region, in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region

(a) without the other person’s consent; and

(b) when the observation or visual recording is made for the purpose of observing or visually recording the other person’s genital or anal region;
commits a misdemeanour.

Maximum penalty – 3 years imprisonment

227B – Distributing prohibited visual recordings

(1) A person who distributes a prohibited visual recording of another person having reason to believe it to be a prohibited visual recording, without the other person’s consent, commits a misdemeanour.

Maximum penalty – 3 years imprisonment

So what does the Code actually prohibit?

The Code now –

• makes it a criminal offence for someone to make, record, or share in any way, any intimate image or video of a person.

• makes it an offence to watch or record a person in a position that would usually be considered private, and/or in a way that shows their genital or anal region, without their consent.

• makes it an offence to distribute these images in a way that would cause distress, and without their consent.

But what is an ‘intimate image’ or ‘prohibited visual recording’?

The Code defines these terms in section 207A.

An intimate image is defined as “a moving or still image that depicts –

(i) the person engaged in an intimate sexual activity that is not ordinarily done in public; or

(ii) the person’s genital or anal region, when it is bare or covered only by underwear; or

(iii) if the person is female or a transgender or intersex person who identifies as female—the person’s bare breasts ”. This can include an image that has been altered to appear to show any of those things. It also includes images of an intimate nature that have been edited to obscure certain parts of the image if the person is depicted in a sexual way.

A prohibited visual recording is defined as

“(a) 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

(b) 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”.

In essence, this means that any photographs or videos of a person in a position that would normally be considered sexual or private will be considered a relevant image under the Code.

The Code also defines a “private act”. It means

(a) showering or bathing; or

(b) using a toilet; or

(c) another activity when the person is in a state of undress ; or

(d) intimate sexual activity that is not ordinarily done in public.

What will amount to distribution?

Under the amended section 207A, the word distribute is defined to include actions that:

“(a) communicate, exhibit, send, supply or transmit to someone, whether to a particular person or not; and

(b) make available for access by someone, whether by a particular person or not; and

(c) enter into an agreement or arrangement to do something in paragraph (a) or (b) ; and

(d) attempt to distribute”.

This definition is rather broad, and will likely include sharing images over social media platforms such as Snapchat, Instagram, and Facebook.

The Code does not say whether or not these platforms will themselves be liable for anything shared on them, however, in the past, these platforms have been held accountable in the court of public opinion when their platforms are used to perpetrate abuse or violence.

How does the Code define consent?

The Criminal Code defines consent in this section as ‘consent freely and voluntarily given by a person with the cognitive capacity to give the consent’. A person under the age of 16 is assumed to be unable to give consent.

What is ‘distress’ in this context?

While the Code does not make explicit the things that will be taken into account when determining whether a person is distressed, it does note that it is irrelevant whether the distributer intends to cause or actually causes distress.

Are there any defences?

Section 223(4) outlines defences available for the offences listed above. If the person who shared the intimate image or prohibited visual recording did so for a genuine artistic, educational, legal, medical, scientific, or public benefit use, and their conduct was reasonable for that purpose, they will be considered not guilty of the offence of distributing an intimate image.


Why is this important to family law?

The criminal offence of ‘Revenge Porn’ has implications for family law, mostly in cases of Domestic Violence. Perpetrators of Domestic Violence will sometimes use intimate images of their partners as a form of blackmail, and the revisions to the Criminal Code allow the courts to more effectively prosecute these people where necessary.

Domestic Violence itself sits at the crossroads between family law and criminal law. It is important that your family lawyer has a good understanding of the Code in order to act properly for you. In cases where a former or current partner has used intimate images as a form of abuse or blackmail, it is important to know that the law is designed to protect victims, and that your lawyers know the law.

Here at Corney & Lind Lawyers, our family law team includes practitioners who have experience in both family and criminal law. We know how to provide the best representation and advice to support you in seeking protection order, or to defend a protection order application brought against you.

In any case, it is best to seek legal advice. At Corney and Lind, we will endeavour to help you reach a just and redemptive outcome in your Family Law dispute.

If you are experiencing domestic violence or are seeking to defend a protection order application, please do not hesitate to contact our client engagement team on (07) 3252 0011 so they can organise an appointment for you with one of our experienced lawyers.

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