You have more than likely heard of one current scourge on society involving the unauthorised creation and sharing of intimate images and videos – also known as revenge porn. These actions cause extreme hurt and embarrassment to the victims of this despicable act.
Recently the Queensland Government successfully passed new laws – the Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Bill 2018 – which ensure that people who share or create intimate images and videos of others without their consent will face up to three years jail. While this legislative movement has been applauded by advocates of criminalisation, just how effective will these new laws be at achieving their purpose?
What do the new laws do?
The new laws introduced by the Queensland Government make it a criminal offence for anyone to share an intimate image or video of another without their consent. An offence that can carry up to a three year term of imprisonment.
The two descriptors – image and video – are defined separately in the Bill. The first, ‘images’, refers to:
- a moving, or still, image that depicts:
- the person engaged in an intimate sexual activity that is not ordinarily done in public; or
- the person’s genital or anal region, when it is bare or covered only by underwear; or
- if the person is female or a transgender or intersex person who identifies as female—the person’s bare breasts; and
- includes an image that has been altered to appear to show any of the things mentioned in paragraph (a)(i) to (iii); and
- includes an image depicting a thing mentioned in paragraph (a)(i) to (iii), even if the thing has been digitally obscured, if the person is depicted in a sexual way.
Videos then refer to:
- a visual recording of the person, in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy; or
- a visual recording of the person’s genital or anal region, when it is bare or covered only by underwear, made in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region.
A private act being defined in the Criminal Code as:
- showering or bathing; or
- using a toilet; or
- another activity when the person is in a state of undress; or
- intimate sexual activity that is not ordinarily done in public.
How will the new laws affect people?
New South Wales introduced similar legislation in 2017. A raft of concerns were expressed regarding the wide scope of the laws because the New South Wales laws came with the possibility that a mother or father could be charged for innocently taking a photo of their young child in a bath. Thankfully, the Queensland legislators utilised common sense when drafting these laws by applying a fairly constrained definition to images. However, it appears that the definition for video was a little more vague.
On one reading of this Bill it could be argued that if a parent in Queensland takes a short video of their child playing in the bath, this could be an offence.
How will the new laws be applied?
The offence under the Bill will only arise when distribution of an intimate image occurs. Distribution means:
- without the other person’s consent; and
- in a way that would cause the other person distress reasonably arising in all the circumstances;
As for visual recordings, the offence arises when a person distributes a prohibited visual recording of another person having reason to believe it to be a prohibited visual recording, without the other person’s consent.
Noteworthy is that a child under the age of 16 cannot give consent, so even if there was an agreement between two or more people to share an image, if the subject of that image was under 16 then a criminal offence has occurred.
The offence also extends to threats to distribute an image or recording.
Are there any defences?
There is a two limb test for a defence to be raised to the distribution of an intimate image or video. The first is that the person engaged in the conduct that is for a genuine artistic, educational, legal, medical, scientific or public benefit purpose.
If that first limb is satisfied they must also prove the conduct was, in the circumstances, reasonable for that purpose.
Could more have been done?
Despite the widespread approval of the new laws, it must be acknowledged that the legislation is not entirely perfect. One reason for this is that the laws are purely limited to images and videos, rather than extending to words also. This leaves it open for a jilted ex-partner to post the intimate text messages with their former lover online along with an array of acts that they supposedly enjoy. While this has the potential to be as damaging as an image or video, it remains untouched by the Queensland legislators.
