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Criminalising Revenge Porn

Paris Hilton did it… and unfortunately most people saw her do it. Years later, following Paris’ classy lead, Kim Kardashian followed suit and her career rocketed from non-existent to omni-present. In New South Wales however, PR agents will now have to advise their clients on alternative ways to achieve instant stardom to those on Hollywood Boulevard.

Yes, that’s right folks. The shocking and unsubtly planned release of intimate videos and photos that set the virtual world on viral fire is now a criminal act.

The Crimes Amendment (Intimate Images) Bill 2017 was assented to in June 2017. New South Wales followed Victoria’s and South Australia’s lead which criminalised this behaviour in 2016. It makes it an offence to “intentionally record or distribute, or threaten to record or distribute, an intimate image of a person without their consent”. In hindsight, the likes of the Kardashians might still achieve fame via this tried and tested method if consent is not an issue.

The prohibited act is commonly referred to as ‘revenge porn’ whereupon a scorned lover gets their own by sharing unsavoury and usually sexual photo or video of their former heart’s desire on the world wide web.

The offence carries a maximum penalty of 3 years of imprisonment, an $11,000 fine or both.  It is an offence to intentionally record or distribute an intimate image of a person in a private act or exposing a person’s private parts without their consent and in circumstances where a reasonable person would expect a right to privacy. Think photos of a shower at home versus a nudie run at the cricket.

The definition of ‘private parts’ has been revised to include a person’s genital or anal area, whether bare or covered by underwear, or the breasts of a female, transgender or intersex person identifying as female.

It is also an offence to threaten to record or distribute an intimate image without the consent of the other person, if the offender intends to cause that other person to fear that the threat will be carried out and actual fear needs to be proven by the prosecution.

A court will be armed with the power to order material be “taken down” and if an offender fails to take reasonable action to do so, they could face an additional two-year jail sentence and a $5,500 fine.

The maximum jail sentence for minors under 16 years is the same as adults however, special consideration will be given to cases involving children to ensure that the new offences do not inappropriately or unfairly criminalise children’s behaviour.  The Director of Public Prosecutions will take a cautious approach with child offenders, requiring the Director’s consent before any child is prosecuted.

Like all good legislation, this amendment is ambitious. It hopes to serve as a deterrent to people seeking revenge porn, to proactively remove images protecting the privacy and dignity of a private person and to punish offenders for retribution and further prevention of future conduct. Whether it will achieve its aims is unknown but unlikely. Once something is in cyber space, isn’t it there indefinitely? Aren’t there recesses of the internet that will hold onto these salacious images to torment people later in the future?

How do we identify these cyber-criminal masterminds? If America cannot work out who hacked the Democrats’ emails, has New South Wales Police got much chance in identifying jilted lovers who do not want to be found (or punished)?

Will it really serve as a deterrent unless people are aware of it and how do we make people aware of it? Isn’t “revenge porn” rampant with tinder-fevered teens, spiking Facebook feeds with these private photos? Even if they are taken down, is it any good once your whole school (teachers included) have seen you naked as a bud? And what is the true deterrent to children if they won’t be treated the same when it comes to punishment?

It’s aspirational and admirable and we can only watch this space to see what it will achieve for all our private citizens, both young and old. In the meantime, think again before you send your lover a tantalising photo. Encourage your kids to keep their social media clean, and always close the door when you’re taking a shower.