It is an offence to distribute an invasive image of another person knowing, or having reason to believe, that the person does not consent to its distribution (often referred to as 'revenge porn'). There are criminal offences relating to revenge porn at both State and Commonwealth levels.
Aside from potentially being a criminal offence, image-based abuse can also be investigated by the Office of the eSafety Commissioner, who has the ability to require the removal of images from websites, and can issue civil penalties in certain circumstances. See Office for the eSafety Commissioner for more information.
Distribution of invasive images - South Australian law
Section 26C of the Summary Offences Act 1953 (SA) prohibits the distribution of an invasive image where a person knows, or has reason to believe, that the other person does not consent to the distribution. The offence applies to both child and adult offenders.
An invasive image is defined as one in which the person is shown a place other than a public place and engaged in a private act, or alternatively, in a state of undress such that their bare genital or anal region can be seen. For females the definition also includes where bare breasts are visible. The definition excludes images that fall within the standards of morality, decency and propriety generally accepted by reasonable adults in the community (e.g. parents sending innocent pictures of their baby to family and friends).
It is a defence to a charge of distributing an invasive image if it was done for a purpose connected with law enforcement, for a medical, legal or scientific purpose or if it was undertaken by a licenced investigation agent in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit.
Maximum penalty: in the case of a person aged under 17 - $20 000 or 4 years imprisonment; in any other case - $10 000 or 2 years imprisonment.
[See Summary Offences Act 1953 (SA) s 26C]
Threat to distribute an invasive image
A person who threatens to distribute an invasive image of a person with the intention of causing fear to that person, or being recklessly indifferent as to whether fear is caused, commits an offence [Summary Offences Act 1953 (SA) s 26DA(1)]. It is often associated with the offence of distribution of invasive images (see above). Both child and adult offenders can be charged with this offence.
Maximum penalty: if the invasive image is of a person under the age of 17 - $10 000 or imprisonment for 2 years; in any other case - $5 000 or imprisonment for 1 year.
A person who threatens to distribute an image obtained by indecent filming of a person with the intention of causing fear to that person, or being recklessly indifferent as to whether fear is caused, commits an offence [Summary Offences Act 1953 (SA) s 26DA(2)].
Maximum penalty: if the person filmed was under the age of 17 - $10 000 or imprisonment for 2 years; in any other case - $5 000 or imprisonment for 1 year.
It is a defence to either charge that the person filmed or photographed consented to that particular distribution of the image the subject of the filming; or the person consented to the distribution of the image the subject of the filming generally. For either defence to apply the person the subject of the filming or photographing must not, at the time of the alleged offence, have withdrawn their consent to the distribution of the image [s 26DA(3)].
What constitutes a threat?
A threat may be either directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct. Both explicit and implicit threats are recognised [s 26DA(4)].
There are other offences under the Summary Offences Act 1953 (SA) that relate to humiliating or degrading filming, and distributing images obtained from such filming - see Humiliating or Degrading Filming.
Publication, transmission distribution, advertisement or promotion of private sexual material - Commonwealth law
The Criminal Code Act 1995 (Cth) section 474.17 makes it an offence to use a carriage service to menace, harass or cause offence. A carriage service (as defined in the Telecommunications Act 1997 (Cth)) has a broad definition and includes social media sites, email, text messages, and telephone calls. The maximum penalty for this offence is imprisonment for up to three years.
When the use of a carriage service involves the transmission, publication, distribution, advertisement or promotion of private sexual material, consideration must be given as to whether the subject of the private sexual material gave consent to the transmission [s 473.4(2)].
Section 474.17A also creates a specific offence where a carriage service is used to menace, harass or cause offence, and that offence involves the sharing of private sexual material [s 474.17A]. The maximum penalty for this offence is imprisonment for up to five years [s 474.17A(1)].
Further, where a person uses a carriage service in these circumstances to share private sexual material, and that person has had three or more civil penalty orders made against them for contraventions of the Enhancing Online Safety Act 2015 (Cth), the maximum penalty that applies is imprisonment for up to seven years [s 474.17A(4)].
What is private sexual material?
Private sexual material in these circumstances is material that:
- depicts a person who is, or appears to be, 18 years or older who is engaged in, or appears to be engaged in, a sexual pose or sexual activity where there is a reasonable expectation of privacy; or
- material which depicts, as the dominant characteristic:
- a sexual organ or anal region of a person who is, or appears to be, 18 or over; or
- the breasts of a female person who is, or appears to be 18 or over.
See Criminal Code Act 1995 (Cth) s 473.1
If the material depicts a person who is, or appears to be, under 18, then it may be considered to be child pornography material (as opposed to private sexual material) and is covered by other sections of the Criminal Code Act 1995 (Cth).
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.