THE Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Act 2019 makes it an offence for a person to “distribute, or threaten to distribute, an intimate image or prohibited visual recording”. Intimate image has a wide definition and is set out in s207A of the above Act. An “intimate image also includes an image that has been altered or photo-shopped to make the person appear to be in a state of undress. These terms are not the subject of any clear definition.

The prosecution obviously bears the onus of proving the images are indeed of the person alleged. A prohibited visual recording is also defined and includes circumstances where a recording is made of an individual “in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy”. Obviously this includes circumstances where someone is showering, bathing or using a toilet.

The Legislation defines the term “distribute” broadly which includes communication of the material, exhibition of the material or sending/supplying it to another person.

Obviously it is not an offence if consent has been given for the distribution of the material and consent is defined as meaning consent that has been freely and voluntarily given by a person with cognitive capacity to give consent. A person under the age of 16 years is taken not to have consented.

There is a defence under Section 223 (4) of the Act, if the conduct constituting the offence is for a genuine artistic, educational, legal, medical, scientific or public benefit purpose and the conduct of the person was in the circumstances reasonable for that purpose

The maximum penalty, if convicted of an offence under the Section, is three years.

Until next week – Keep it Legal!

Matthew Fairclough
mfairclough@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.