What do the new intimate image laws do?

The new intimate image laws which will come into effect following the commencement of the Criminal Law Amendment (Intimate Images) Act 2018 (WA) on 15 April 2019 will amend the Criminal Code (WA) to do three things:

1. create a new offence to distribute an intimate image of a person without their consent;
2. empower courts to make a rectification or ‘take down’ order in relation to the image; and
3. criminalise the threat to distribute an intimate image.

When can someone be charged under the new intimate image laws?

The new laws come into effect on the 15 APRIL 2019. WA Police will not have the power to investigate intimate image complaints which occurred prior to that date.

What is defined as an ‘intimate image’?

The new laws have made it an offence to distribute an intimate image without the consent of the person in the image. An ‘intimate image’ means:

a still or moving image, in any form, that shows, in circumstances in which the person would reasonably expect to be afforded privacy -

• the person’s genital or anal area, whether bare or covered by underwear; or
• in the case of a female person, or transgender or intersex person identifying as female, the breasts of the person, whether bare or covered by underwear, or
• the person engaged in a private act;

and includes an image, in any form, that has been created or altered to appear to show any of the things mentioned above.

What is meant by ‘distribute’?

The new laws have carefully defined ‘distribute’ to capture the range of ways in which images can be displayed and/or distributed. This includes one to one sharing, posting on social media (or through the regular mail), uploading to websites, or photocopying images and then displaying it where others can see; and sending images by text or mobile telephone applications.

Distribution has a broad meaning and does not refer only to digital or electronic images and the use of social media.

Distribute an intimate image of a person means:

• communicating, exhibiting, selling, sending, supplying, offering or transmitting the image to a person other than themselves or the person depicted in the image; or
• making the image available for access by electronic or other means by a person other than themselves or the person depicted in the image;
• ·or entering into an agreement or arrangement to do anything mentioned above.

What is meant by ‘consent’?

Under the new laws, it is an offence to distribute the intimate image of a person unless that person has given their consent freely and voluntarily. Consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means.

A person who gives consent to the distribution of a particular intimate image on one occasion does not automatically consent to that image or any other image being distributed on other occasions – nor do they automatically consent to it being distributed by any other person.

Under the new intimate images offences, a person who is under 16 years of age cannot consent to the distribution of an intimate image.

(It should be noted that under Commonwealth laws, it is illegal to distribute an intimate image of a person under 18 years of age).

Can a young person be charged with a criminal offence if they share an intimate image of someone else?

Yes. Any person over the age of 10 can be charged if they commit a criminal offence in WA.

They can be charged with the new intimate image offence if they share an intimate image of someone else who does not consent or cannot consent due to being under 16.

It is also possible to be charged under existing Commonwealth laws if you take, keep, send, or ask for an intimate image of a person who is under the age of 18 – with or without consent.

Where a young person under 18 commits any of these offences, WA police have discretion to issue a caution or refer the matter to the Juvenile Justice Team instead of proceeding with criminal charges. 

What is the penalty if you commit the offence?

The new offence is an ‘either-way’ offence, which means it can be tried summarily (in the Magistrates Court) or on indictment (in the District Court).  The maximum penalty on indictment is imprisonment for three years. The summary conviction penalty is a maximum imprisonment term of 18 months and a maximum fine of $18,000.  

The full range of sentencing options are also available to the court, such as a fine, community order, or suspended sentence.

Are there any other circumstances where it would be considered acceptable to distribute an intimate image of a person who does not consent or is not old enough to consent?

There are a number of defences and exclusions aimed at protecting conduct that is considered reasonable and socially acceptable or in the public interest, for example, a distribution:

• for a genuine scientific, educational or medical purpose;
• for the purpose of legal proceedings;
• for a media activity purpose; or
• which a reasonable person would consider acceptable having regard to a range of circumstantial factors.

  There are also a number of exclusions or exceptions, for example, where the distribution occurs in the course of:

  • Law enforcement duties;
  • Performing a function under another law; or
  • In the administration of justice.

Will it be an offence to threaten to send an intimate image?

Yes.  Under WA law, it is an offence to threaten to hurt, harm or cause a detriment to another person.

Section 338B of the Criminal Code extends threat offences to apply to a threat to distribute an intimate image. The maximum penalty is imprisonment for 18 months and a fine of up to $18,000.

If the threat is made with the intention of gaining a benefit, causing a detriment, or compelling a person to do something against their will, the penalty is up to 7 years imprisonment.

Can the court order a person to remove an intimate image from the internet?

If a person is charged under the new WA laws with distributing an intimate image, the court can order that person to remove, retract, recover, delete, destroy or forfeit that image, within a specified period of time.

Failing to take reasonable steps to comply with the court order can result in sentences of up to 12 months imprisonment and a fine of $12,000.

Can the Commonwealth eSafety Commissioner order the removal of an intimate image from the internet?

The Commonwealth eSafety Commissioner can order removal of an intimate image from social media, the internet, or any other electronic service if it was posted without consent.  They can issue a removal notice to the person who posted the image or to the provider of the service.  The penalty for failing to comply with a removal notice is a fine of up to $105,000 for an individual and up to $525,000 for a corporation.

The eSafety Commissioner also has an online complaints portal for reporting non-consensual image sharing.

For more information in relation to the functions of the eSafety Commissioner, please visit www.esafety.gov.au.

Making a complaint to the police (criminal complaint)

All intimate image complaints can be reported by calling 131 444 or by attending a police station.

What happens if the person distributing or threatening to distribute the image is not in WA?

Similar laws apply in other states and under Commonwealth legislation.

Report the matter to WA Police. They will deal with the report in accordance with the National Cybercrime Investigation Protocols.

Making a complaint to the eSafety Commissioner (non-criminal complaint)

The eSafety Commissioner can assist with removal even if you don’t want to pursue criminal charges against the person who shared the image. For help with removal of intimate images that have been shared without consent, you can make a complaint to the eSafety Commissioner via their reporting tool at www.esafety.gov.au/image-based-abuse/action.

Will a person convicted of an intimate image offence under the new laws be placed on the Sex Offender Register?

No. A person convicted of an intimate image offence under the new laws will not become a reportable offender or go on the Sex Offender Register.

However there are many other offences under WA and Commonwealth laws relating to child exploitation material that can result in inclusion on the Sex Offender Register.

Will a person convicted of an intimate image offence under the new laws be prevented from getting a ‘Working with Children’ clearance?

The new offence will be listed in Schedule 2 of the Working with Children (Criminal Record Checking) Act 2004 (WA).  This means that if a person is convicted of distributing an intimate image – and the image was of a child under the age of 18 – then they will not be granted a working with children’s permit, unless particular or exceptional circumstances apply. 

Further Information

Young People and Intimate Image Laws

Young people are not exempt from the new offence.

Any person over the age of 10 can be charged if they commit a criminal offence in WA, including the new intimate image offences.

There are also many other offences under WA and Commonwealth law relating to intimate images of young people.

 The key messages for young people are simply: 

• It is against the law to take, keep, send or ask for an intimate image of a person under 18;
• It is against the law to share an intimate image of a person of any age without their consent.

Sentencing young people for intimate image offences.

The new laws avoid unduly criminalising young offenders (i.e. those who offend before reaching the age of 18) by preserving the diversionary options available under the Young Offenders Act 1994 (WA) including the use of cautions and referral to a Juvenile Justice Team where appropriate. For example:

Cautioning

• Police will be able to issue cautions in relation to the new offences – either orally or in writing.
• A caution is to be preferred against laying a charge, unless there is a history of previous offences and/or the seriousness of the offence would make it inappropriate to issue a caution.

Juvenile Justice Team

• Police may also refer a young person who is alleged to have committed one of the new offences to the Juvenile Justice Team, rather than laying a charge.
• The Juvenile Justice Team process is focussed on a restorative justice model, and a referral can only be made if the young person accepts responsibility for what has happened.
• The Juvenile Justice Team process involves the family, the victim and professional support in the development of an ‘action plan’ for the young person which is then monitored. This might involve an apology to the victim, repairing or replacing damaged property, attending counselling, or providing some form of compensation to the victim.
• If a charge has proceeded to court, the court may also refer the matter to the Juvenile Justice Team.

Court sentencing and related matters

A court sentencing a juvenile offender for any offence must have regard to:

• The general principles of juvenile justice described in section 7 of the Young Offenders Act 1994 (WA);
• The age of the offender (with younger age providing grater mitigation); and
• The fact that rehabilitation is aided by the involvement and support of family, and opportunities to engage in employment and education.

Please Note:

Notwithstanding the introduction of the new WA intimate images legislation, there may be other state and Commonwealth legislation relevant to the possession and/or distribution of child exploitation material.

So the message to young people is simple: It is against the law to take, keep, send or ask for an intimate image of a person under 18 years of age.