Non-consensual pornography has been criminalised under recent amendments to the NSW Crimes Act 1900. The new offences are designed to target the growing trend of image-based abuse, which reportedly affects 1 in 5 Australians, and carry a maximum penalty of three years imprisonment and an $11,000 fine.

Previously, only the filming of a person’s private parts or someone engaged in a private act was prohibited, and then only if there was an element of sexual arousal or gratification, such as in cases of ‘upskirting’.

Offences more inclusive and much wider in scope

Under the amendments, it is now an offence for anyone to capture or distribute intimate images (still or video) of a person engaged in a private act, or exposing the person’s private parts without consent, irrespective of sexual or any other motivation.  The law defines ‘private parts’ as either a person’s genital or anal area, regardless of whether that person is wearing underwear, or the breasts of a person who identifies as female. Engaging in a private act includes being naked, using the toilet or showering, or having sex. The amendments set out a non-exhaustive definition of consent in intimate images offences.

The offences of recording and distribution of intimate images both require specific intent. This means that is only necessary to show that a person intended to cause the specific result, i.e. to record or distribute an intimate image.  Showing an intimate image, for example, of an ex-partner on one’s phone to a friend would be sufficient to establish distribution.

The tough new penalties also apply to anyone who threatens to record or share an intimate image without consent. These laws apply equally to adults and minors, however children under the age of 16 can only be prosecuted with the approval of the Director of Public Prosecutions.

Reasonable expectation of privacy

Under Australian law, there is no right to privacy for acts done in public. The new offences do not apply to intimate images of people in circumstances in which there could be no reasonable expectation of privacy.  It is arguable that where people have sex in public places potentially watched by onlookers, known as ‘dogging’ in the UK, would not be considered engaging in a private act, and as such, the distribution of images of people engaged in the act would not be a crime under the new laws.

But this does not appear to apply in cases where the image has been altered. This means that sexualised photoshopping, such as photoshopping a person’s face onto the bodies of naked people having sex, is now a crime.

Internet Take Down Order

Under the new legislation, Courts can also order the offender to destroy the images and prevent their republication. Failure to comply with this order is punishable by an additional $5,500 fine and or two-year gaol sentence.

Given the practical difficulties with removing content from the internet, even with the cooperation of social media companies, it is unclear what a person subject to a rectification order will have to do to show that they had a reasonable excuse for contravening the order.

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