The criminal offence of sextortion has been on the rise in Australia over the past several years, but the latest figures released by the eSafety Commissioner show a staggering rise in reports since the start of 2023, with complaints nearly tripling compared with the same period last year.
Spike in sextortion
The eSafety Commissioner received more than 1,700 complaints of sextortion in the first three months of 2023, up from about 600 over the same period last year.
Nine out of 10 of the complaints were from men, and 70 percent of those came from those aged 18 to 24 years.
The incidents do not primarily relate to former partners attempting to cause harm after a soured relationship, which is sometimes referred to as ' revenge porn', nor are they mainly from sinister 'pranksters' without a thought for the harm the practise can cause.
According to the eSafety Commissioner, the spike is predominantly a result of conduct by sophisticated criminal gangs, who threaten to infiltrate a person's digital devices and release sexualised images unless their demands are met.
What is sextortion?
Sextortion is a form of image-based abuse.
In past years, it normally occurred when one person posed as an attractive female and requested sexualised images from a young man, before threatening to publish or send the received photos and/or videos to family and friends if their demands were not met.
And while that practise continues, the latest involves an up-front threat along the lines of: "I know your passwords, I know which websites you visit and I can access everyone in your contact list, so send me some naked photos so I don't divulge the things you do online ..." and then of course, once the photos are sent, the demands for money start.
This can be enormously distressing, but particularly so for young men who have a tendency to under report any type of sexual-based abuse.
Sextortion can amount to a criminal offence
Sextortion is not a standalone offence in New South Wales.
However, such conduct can amount to any one of a number of criminal offences in our state, and indeed across Australia.
New South Wales offences
In 2017, the Crimes Amendment (Intimate Images) Act of 2017 inserted the following image-based sexual offences into the Crimes Act 1900 (NSW):
- Recording an intimate image without consent – section 91P
- Distributing an intimate image without consent – section 91Q
- Threatening to record an intimate image without consent – section 91R(1)
- Threatening to distribute an intimate image without consent – section 91R(2).
The maximum penalties for each of those offences is 3 years in prison and/or $11,000 fine.
An 'intimate image' is defined as:
- an image of a person's private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
- an image that has been altered to appear to show a person's private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.
The same section defines 'private parts' as a person's genital area or anal area, whether bare or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female.
'Engaged in a private act' means:
- in a state of undress,
- using the toilet, showering or bathing,
- engaged in a sexual act of a kind not ordinarily done in public, or
- any other like activity.
Under the legislation, New South Wales courts are empowered to issue 'take down' orders which compel offenders to take "reasonable steps to recover, delete or destroy images taken or distributed without consent".
Disobeying this order could see an additional two years in prison and $5500 fine issued.
Federal offence
Sextortion can also amount to the Commonwealth offence of using a carriage service to menace, harass or cause offence under section 474.17 of the Criminal Code Act 1995 (Cth), which applies across Australia and carries a maximum penalty of 5 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You used a carriage service, and
- You did so in a way that a reasonable person would regard as menacing, harassing or offensive in all of the circumstances.
A 'carriage service' is defined as, 'a service for carrying communications by means of guided and/or unguided electromagnetic energy' which includes telephone calls, text messages and internet transmissions, such as emails and the use of social media sites.
The use is 'menacing' if it includes:
An express or implied threat of detrimental or unpleasant conduct which is likely to cause the other person to act unwillingly.
The use is 'offensive' if a reasonable person would regard it as being so.
The matters to be considered when deciding whether the use is offensive include:
- the standards of morality, decency and propriety generally accepted by reasonable adults
- Any literary, artistic or educational merit of the material, and
- The general character of the material, including whether it is of a medical, legal or scientific character.
The legislation does not define 'harass' however, it has been defined as 'to disturb, bother or pester repeatedly'.
Online Safety Act
Additionally, the Online Safety Act 2021 (Cth) which was introduced in 2022 contains provisions which can be used to compel platforms such as Twitter, Facebook, and Instagram to remove "cyber abuse material" within 24 hours. Failure to do so can result in fines as well as injunctions that can suspend or even stop them from operating.
Under the laws, it is also an offence for a person to post, or threaten to post, and intimate image of another person without the latter's consent.
However, these intimate image laws only relate to Australians posting images of other Australians living in the country.
There remains concern that online platforms have been too slow to respond to take down orders. And of course, cyber criminals are armed with the technology and the intelligence to make fake accounts, duplicate accounts and make themselves seem very "real" and personable, yet at the same time, seem virtually untraceable.
There are also fears that advances in technology such as AI are only going to arm cyber criminals even further.
Young people are advised, above all, to take precautions online. And of course, to report anything they regard as suspicious to the platform they're being targeted on.
A crime that crosses international borders
Above all, victims should not succumb to paying demand money and contact the eSafety Commission as soon as possible.
The eSafety Commissioner has broad powers to gather information with a view to identifying and potentially prosecuting offending individuals and to require internet companies who operate in Australia to remove such content.
The process of catching criminals based overseas is not always straightforward, but complaints to the eSafety Commissioner are taken very seriously – the Commission can and does report serious offences to police, and victims also have the option to involve police themselves.
Individual countries will often cooperate and collaborate across multiple jurisdictions to ensure that where possible justice can be served.
At the end of last year, the Australian Federal Police and AUSTRAC (Australian Transaction Reports and Analysis Centre – the Federal Government's financial intelligence agency) shut down more than 500 Australian bank, financial services and digital currency accounts linked to offshore organised criminals sexually extorting Australian teenagers.
At the time, the Australian Federal Police quoted figures from specialist AFP-led agency, the ACCE (Australian Centre to Counter Child Exploitation) which recorded an average of more than 100 reports of this type of sextortion every month this year – a 100-fold increase on the year prior.
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.
