Modern technology has revolutionised the way that we communicate with one another. The ability to stay connected through the internet, share moments and experiences through phones, and reach a wide variety of people instantaneously are but a few of the benefits of technology. However with this increased freedom to communicate, individuals are also exposed to far greater risks. Sending an explicit picture or video (‘sexting’) with another person may now be saved and shared with others. This has created problems that the law never anticipated, as has the prevalence of people under 18 using mobile technology to sext. Until recently the law in Victoria had not caught up with the rapid rise of technology, but recent changes have addressed some of the common scenarios that arise.
Generally speaking, there is no illegal activity when consenting adults share intimate, explicit or pornographic images of themselves with one another. However, if one of the parties is under 18 years of age, or the image(s) are then shared with other people without the consent of the sender, the law has been broken.
Child pornography law in Victoria
Under Victorian law, you can be charged with the possession of child pornography if you have received an explicit or indecent image of a person less than 18 years of age, and may be charged with producing child pornography if you have taken the image of the minor yourself. Individuals found guilty of these offences can face up to 5 years imprisonment for possessing child pornography, or 10 years for producing it. Under the law previously, individuals under 18 could be found guilty of these offences (even if the images were of themselves), which also included mandatory placement on the sexual offenders register. This had dire effects on individual's employment prospects, as well as their ability to have contact with children in the future. To tackle this inequity, recent updates to the law have provided the following exceptions.
You will not be prosecuted for child pornography if:
· The images are of yourself; or
· You are under 18 years of age and the person(s) in the image is no more than 2 years younger than you.
Individuals under 18 years of age may now also avoid being placed on the sexual offenders register, although it is left to the discretion of the judge. Individuals 18 years of age or older who are found guilty of a child pornography offence must be placed on the register.
Unauthorised sharing of explicit images, or ‘revenge porn.’
Recent cases in courtrooms across Australia have shed light on the common practice of individuals intentionally sharing explicit images that they have been sent by someone with other people, without the consent of the original sender. This often (but not exclusively) occurs when a relationship breaks down and is used as a way to punish or humiliate the other party. Unauthorised sharing may include:
· Sending or transmitting the image to someone else; or
· Exhibiting the image; or
· Making the image available for access to others (ie. posting the image online.)
The penalty for sharing an explicit image of another without their consent carries a maximum penalty of 2 years imprisonment. A maximum of 1 year imprisonment may be imposed for threatening to share an explicit image that has been received.
Technology has provided us with a fantastic means of improving our lives, connectedness, and ability to share information. However, it has also put our privacy at risk in a way that it has never before. If any of this information applies to you or your current situation, please get in contact with us on 03 8877 6888.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.