Australia: Three years jail for revenge porn under new laws in NSW

In June 2017, new laws were passed by NSW parliament to crack down on the despicable trend of revenge porn, also known as image-based abuse.

I have long advocated for tougher laws to protect people from attacks and invasion of privacy conducted through social media and the internet, and the need to bring the law into line with advances in technology. (Please see my earlier article Time for stronger laws on revenge porn.)

The problem is widespread. Facebook reportedly had to disable more than 14,000 accounts in a single month after assessing 54,000 potential cases of revenge porn and "sextortion".

Severe penalties for recording or sharing intimate images without consent

Now the NSW Crimes Amendment (Intimate Images) Act 2017 has become law, making it a crime to share or record intimate images or videos without consent. Penalties are severe – up to three years' jail and fines of up to $11,000.

The new law covers photos and videos of a person's private parts or a person engaging in a private act like undressing, showering or having sex.

Motivation of perpetrators no longer relevant

The Act closes a loophole in the law whereby perpetrators could escape prosecution if their motivation in posting or sending intimate images was not sexual gratification.

Under the new law, motivation is irrelevant. For an offence to be committed, those recording or distributing an intimate image only have to be aware, or reckless to the possibility, that the subject of the image has not consented.

Prosecution of a person under the age of sixteen for revenge porn

As young people share intimate images more than other age groups, the law includes a provision that prosecution of a person under 16 will only be possible with the consent of the Director of Public Prosecutions.

NSW Attorney General Mark Speakman said he didn't want the law to criminalise "stupid, reckless or naïve teenage behaviour", but it is in the law so that in severe cases, the DPP can take action.

"This is more about focusing on adult sleazebags rather than targeting and criminalising young people's irresponsible behaviour," Mr Speakman said.

Federal legislation to include injunctions, infringement notices and take-down notices

The NSW law introduces new powers for a court to order a convicted person to remove or destroy images they took or posted illegally. It is hoped this new NSW law will work in conjunction with planned federal legislation aimed at making it possible for perpetrators to face civil penalties.

The federal legislation planned for later in 2017 would include enforceable undertakings, injunctions, infringement notices, formal warnings and take-down notices. Both the person who posted the illegal material and the hosts of the sites that publish the content would be subject to the penalties under the law being considered.

The federal government proposes that the Office of the Children's eSafety Commissioner would be able to impose civil penalties and be given extra powers to investigate complaints, as is the case with cyberbullying. (Please see the federal government discussion paper, Civil penalties for non-consensual sharing of intimate images.)

Enforcing take-down orders on websites hosted overseas

There will of course be difficulties for the new law to keep up with changes in technology. The major problem will be to enforce take-down orders on websites that are hosted overseas. Many of the so-called revenge porn sites emanate from Russia and other countries in eastern Europe where it is hard to enforce Australian court orders.

They operate to make a profit and often hide their origins. It will be a challenge for the cyber police to track them down.

But even under existing criminal law there have been successful prosecutions. In 2015 a man got a seven year sentence for encouraging teenage girls on social media to send intimate photos of themselves, then threatening to send the images to their family and school.

In 2017 a Brisbane man was sentenced to four and a half years' jail for superimposing his former girlfriend's head on images of naked women, posting them online along with her phone number and address, then inviting men to rape and torture her. More than 50 men turned up at her door in what she described as a "reign of terror" that lasted four years.

Anything that can be done to combat this type of terrible life-destroying action has to be welcomed.

Anneka Frayne
Criminal law
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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