Sharing intimate images without consent: What law applies in Victoria?

The article Sharing intimate images without consent: What law applies in Victoria? is written by Bill Doogue, Director, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.

Bill is a director of the operations of Doogue + George. He has been an accredited criminal law specialist ever since 1998 and has over 30 years of experience in criminal defence.

Over the years, Bill's legal expertise has allowed the firm to represent numerous clients - including high ranking church officials, state and federal politicians, as well as huge corporations which sometimes involve foreign jurisdictions. His excellence in the field earned him a Law Institute of Victoria Service Award in 2013 and the title of Preeminent Criminal Defence Lawyer in the Doyle’s Guide 2023.
 

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The non-consensual sharing of intimate images (sometimes referred to as ‘revenge porn’ or ‘image-based abuse’) is a unique crime for the digital age and something the law has been slow to directly address.

The following outlines the key criminal offences that may apply to image-based abuse cases in Victoria.

Victorian Offences

Section 41DA(1) of the Summary Offence Act 1966 (Vic) states that:

A person (A) commits an offence if—

1. A intentionally distributes an intimate image of another person (B) to a person other than B; and
2. the distribution of the image is contrary to community standards of acceptable conduct

The offence carries a maximum of two years imprisonment.

The offence will not apply if ‘B’ is an adult who either expressly or impliedly consented to the distribution of the image, or could reasonably be considered to have expressly or impliedly consented.

What constitutes ‘contrary to community standards of acceptable conduct’ is not exhaustively defined in the act, but includes standards of conduct having regard to:

• the nature and content of the image;
• the circumstances in which the image was captured;
• the circumstances in which the image was distributed;
• the age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the image;
• the degree to which the distribution of the image affects the privacy of a person depicted in the image.

There is also a separate offence under Section 41DB for threatening to distribute an intimate image without consent.

Federal Offences

The Federal Criminal Code contains an offence under s474.17 for ‘using a carriage service to menace, harass or cause offence’. This will apply when image based abuse is distributed over the internet.

The Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2007 (Cth) recently passed the Senate (the introductory house) and is likely to be approved and given assent by the House of Representatives.

This Bill introduces a series of Federal civil penalty offences, which will be enforced by the eSafety Commssioner against individuals who post, or threaten to post an intimate image without consent on a social media service, relevant electronic service, or a designated internet service.

The maximum penalty under the regime for a natural person will be 500 penalty units or $105,000.

An image will be an ‘intimate image’ if it depicts private parts, private activity or a person without attire of religious or cultural significance. Provisions in the Bill also deal with situations where a person’s face is photo-shopped or edited onto sexually explicit material.

If you have been charged with an offence related to image-based abuse or you would like further information about applicable laws, please get in touch with Doogue + George Lawyers.
 
 
 
Date Published: 26 March 2018