Content warning: We advise reader discretion as this article contains discussions on sensitive topics in relation to the offence of recording and distributing intimate images.
Recording and distributing intimate images without consent is a crime under the Crimes Act 1900 (NSW). There are a number of reasons why it is important to be aware of the law on intimate image offences. First, these offences can have a devastating impact on the victim.
The distribution of an intimate image can cause emotional distress, humiliation, and damage to the victim’s reputation. It can also make it difficult for the victim to find employment or housing. Second, the law on intimate image offences is designed to protect people’s privacy. Everyone has the right to control how their image is used, and the law helps to ensure that this right is respected.
Read on to know more about these specific laws about recording and distributing intimate images.
Section 91N on Recording and Distributing Intimate Images: Terms & Definitions
Section 91N sets out terms about provisions for recording and distributing intimate images. Below is a table with the terms.
“distribute” | This includes sending, supplying, exhibiting, transmitting or communicating an image to another person. This is the case whether in person or by electronic, digital or any other means. |
“intimate image” | 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 expect to be afforded privacy. |
“image” | A still or moving image, whether or not it is altered. |
“record” | To record, take, or capture an image |
“private parts” | Private parts in this article are defined as: – A person’s genital area whether bare or clothed – The breasts of a woman, or transgender, or intersex person who identifies as female. This is the case whether or not the breasts are sexually developed. |
Section 91O: Consent in Intimate Image Offences
Section 91O of recording and distributing intimate images outlines consent in intimate image offences. Here is a breakdown of its definitions:
- A person consents to the recording or distribution of an intimate image if the person freely and voluntarily agrees to it.
- Consent to the recording or distribution of an image on a particular occasion does not mean that the person consents to the recording or distribution of the image on any other occasion.
- Consent to the distribution of an image to a particular person or in a particular way does not mean that the person consents to the distribution of the image to another person or in another way.
- A person who distributes an image of themselves is not, by reason only of that fact, considered to have consented to any other distribution of the image.
- A person does not consent to the recording or distribution of an intimate image if:
- The person is under the age of 16 years or does not otherwise have the capacity to consent, including because of cognitive incapacity.
- The person does not have the opportunity to consent because they are unconscious or asleep.
- The person consents because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person).
- The person consents because they are unlawfully detained.
Section 91P: Record Intimate Image Without Consent
Section 91P of provisions under recording and distributing intimate images outlines consent when recording intimate images. It is an offence to intentionally record an intimate image of another person without their consent and knowledge. It is also an offence if the offender is being reckless as to whether the person consented to the recording.
The maximum penalty for this offence is 100 penalty units or imprisonment for up to 3 years, or both. A prosecution of a minor for an offence under this section requires Director of Public Prosecutions approval.
Section 91Q: Distribution of an Intimate Image Without Consent
Section 91Q of provisions under recording and distributing intimate images outlines the offence of distribution of intimate images without consent. It is an offence to intentionally distribute an intimate image of another person without their consent and knowledge. It is also an offence if the offender is being reckless as to whether the person consented to the distribution.
The maximum penalty for this offence is 100 penalty units or imprisonment for up to 3 years, or both. A prosecution of a minor for an offence under this section requires Director of Public Prosecutions approval.
Section 91R: Threatening to Record or Distribute an Intimate Image
Section 91R outlines the office of threats of recording and distributing intimate images. It is an offence to threaten to record or distribute an intimate image of another person without their consent. This includes intending to cause the person to fear that the threat will be carried out.
The maximum penalty for this offence is 100 penalty units or imprisonment for up to 3 years, or both.
A threat can be made in any way, whether it is explicit or implicit, conditional or unconditional. It is also not necessary for the image to exist in order to be threatened with distribution.
The prosecution does not need to prove that the person threatened actually feared that the threat would be carried out. A prosecution of a minor for an offence under this section requires Director of Public Prosecutions approval.
Section 91S: Court May Order Rectification
Section 91S outlines how a court may order rectification. What if a court finds a person guilty of recording or distributing intimate images without consent? The court may then order the offender to take reasonable steps to remove, retract, recover, delete, or destroy the intimate image. The offender must do so within a period specified by the court.
The same applies to Section 91R (threatening to record or distribute an intimate image without consent).
If a person fails to comply with an order made under this section without reasonable excuse, they are guilty of an offence. The maximum penalty for this offence is 50 penalty units (AUD$5500) or imprisonment for up to 2 years, or both. An offence against this section is a summary offence.
Section 91T: Exceptions to Intimate Image Offences
Section 91T sets out exceptions to intimate image offences. A person does not commit an offence against Section 91P or 91Q (recording or distributing an intimate image without consent) if the conduct was done for one of the following reasons:
- A genuine medical or scientific purpose.
- A genuine law enforcement purpose by a law enforcement officer. The term “law enforcement officer” means a police officer or other person who exercises law enforcement functions under a law of:
- New South Wales;
- Another state;
- A territory; or
- The Commonwealth.
- As required by a court or otherwise reasonably necessary to be done for the purpose of legal proceedings.
- The conduct was considered acceptable by a reasonable person, taking into account the following factors:
- The nature and content of the image.
- The circumstances in which the image was recorded or distributed.
- The age, intellectual capacity, vulnerability, or other relevant circumstances of the person depicted in the image.
- The degree to which the accused person’s actions affected the privacy of the person depicted in the image.
- The relationship between the accused person and the person depicted in the image.
Why Is It Important to Seek Legal Advice?
Recording and distributing intimate images can have serious consequences for the offender.
As mentioned, there are various penalties and provisions that can affect the outcome of the offence. Therefore it is important to seek legal advice from experienced criminal lawyers like JB Solicitors who can help:
- If you are guilty: We can help you understand the charges against you and your legal options. They can also represent you in court and negotiate a plea deal.
- If you are not guilty: We can help you build a strong defence and defend your case in court. They can also help you with the civil side of things, such as filing a defamation lawsuit against the person who accused you.
Here are some examples of how our lawyers can help victims of the offence:
- Helping victims understand their legal options: Our team can help victims understand their legal options, such as filing a civil lawsuit or seeking criminal charges.
- Representing victims in court: We can represent victims in court, either as a plaintiff or a witness.
- Helping victims get justice: Our solicitors can help victims get justice by fighting for their rights and holding the offender accountable.
Contact us today if you need more information about recording and distributing intimate images.