By Rhys Michie, CLA’s leading expert on the sexting issue
The privacy of Victorians has been enhanced with the passing of ‘Sexting’ legislation.
People who send ‘Sexts’ – which teenagers particularly delight in doing – will now be protected in law from their non-consensual distribution to third parties
‘Sexting’ is “the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices”.
People who engage in this form of communication will now have the State on their side, in Victoria at least, if the recipient distributes the sext to someone else.
The Victorian Parliament passed the Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 on 15 October 2014, which amended the Summary Offences Act 1966 (Vic), and the Crimes Act 1958 (Vic). This legislation creates the new offences of distribution of an intimate image (s. 41DA) and threat to distribute an intimate image (s. 41DB) under the Summary Offences Act.
It also creates four exceptions to the offence of publication or transmission of child pornography to protect young people who engage in consensual ‘sexting’ from being treated as child pornographers.
The new law has arisen from a process of community consultation and parliamentary debate, which is an excellent example of changing the law to meet the needs of the community. Civil Liberties Australia (CLA) has been involved in this process from the start: we congratulate the Victorian Government for its community involvement.
The Victorian Parliament Law Reform Committee received Terms of Reference for its Inquiry into Sexting on 1 September 2011. The Committee invited and accepted 60 submissions from the public during 2012, CLA’s submission can be found here.
The committee also held hearings during 2012, and 45 witness appeared. On 29 May 2013, the committee tabled its Final Report for the Inquiry into Sexting, which can be found here. You can find CLA’s analysis of that report here. The Government Response to this report was tabled in parliament on 10 December 2013, which can be found here. Robert Clark, Attorney-General of Victoria, introduced legislation into the Victorian Parliament on 20 August 2014, and the second reading speech can be found here. Parliament debated, amended and passed the Bill on 15 October 2014.
As stated by AG Clark, the purpose of this legislation is to provide:
“protection against non-consensual distribution of intimate images [which can] cause considerable harm, particularly if an image ‘goes viral’”. Furthermore, “[i]n recent years, the growing phenomenon of ‘sexting’ has prompted concerns that teenagers may be inappropriately criminalised by existing child pornography laws. It is important that the criminal law is updated to reflect changing uses of technology, while providing protection against harmful behaviour”.
The new offence of Distribution of intimate image contained in section 41DA of the Summary Offences Act prohibits the “intentional distribution of an intimate image where that distribution is contrary to community standards of acceptable conduct”. It means that if you create an intimate image, and send it to someone, it is against the law to for them to intentionally send it to a third party, without your consent. If you are a minor, then consent is not relevant. The maximum penalty is two years imprisonment.
The second new offence of Threat to distribute intimate image contained in section 41DB of the Summary Offences Act prohibits the “threatening to distribute an intimate image” as a tool of coercion. The maximum penalty is one year imprisonment. It means that it is against the law for someone to threaten to send an intimate image of you. These new laws strengthen the privacy of people in Victoria, and protect Victorians from blackmail or revenge porn.
A key feature of these new laws is the application of the ‘community standard test’ by the courts. As AG Clark stated:
This law “provides guidance to courts to determine the application of community standards of acceptable conduct in a particular case. The court is directed to consider the context in which the image was captured and distributed, the personal circumstances of the person depicted, and the degree to which their privacy is affected by the distribution. The purpose of the community standards test is to ensure that the offences do not unjustifiably interfere with individual privacy and freedom of expression, while at the same time targeting exploitative, harmful and non-consensual behaviour”.
The innovative use of this device reflects foresight and a high fidelity of judgement on the part of the Victorian Parliament, and is commended by CLA. This community standards test balances the competing interests of privacy with freedom of expression. It does so within the context of rapidly evolving communication technology and changes in society, without binding future Victorians to today’s contemporary standards.
These laws are similar to South Australia’s sections 26B and 26 C of the Summary Offences Act 1953 (SA), which created the offence of distributing an invasive image. In South Australia, this law also makes it unlawful to film a person who is subjected to, or forced to, engage in a humiliating or degrading act, and/or distributing such a film.
The other important change that the Victorian legislation makes is to address concerns that “teenagers may be inappropriately criminalised by existing child pornography laws”. The legislation introduces four exceptions to the child pornography offences, as stated by AG Clark:
“The exceptions aim to capture non-predatory and non-exploitative sexting. They do so by focusing on age and the nature of the act depicted. In relation to age, the exceptions only apply to sexting by minors. Once a person turns 18, these exceptions will no longer be available. Further, where explicit images of minors are shared, the exceptions are limited to sharing between peers — that is, the minor must not be more than two years older than another minor depicted in the image (or reasonably believe this to be so).
The legislation creates a new section 70AAA of the Crimes Act 1958 (Vic), and implements a key recommendation arising from the Inquiry into Sexting. The law now recognises that teenagers who engage in consensual peer-to-peer sexting are categorically distinct from child pornographers. A consequence will be that young people who engage in this behaviour will no longer be placed on the Sex Offender Register. In CLA’s view, the legislation strikes the balance right: the checks and balances will “ensure that child pornography offences continue to protect children against exploitative and predatory behaviour” whilst recognising the changes that have occurred in contemporary society.
This process of law reform has yielded best practice legislation that is a model other jurisdictions can follow. Already, the problems around non-consensual distribution of intimate images, and the criminalisation of behaviour of young people have been recognised by the Commonwealth and South Australian Governments.
The next step in the process is for other State, Territory and the Commonwealth Governments to engage in a process of community consultation, law reform and harmonisation. CLA looks forward to engaging with other parliaments around Australia in changing the law to protect people’s privacy and ensure that minors are not inappropriately prosecuted for child pornography offences when they engage in sexting with their peers.
 Law Reform Committee (2013) Inquiry into Sexting, Victorian Parliament, Parliamentary Paper No. 230 (p ix)
 Hansard (21/08/2014) The Honourable Robert Clark, Victorian Parliament, p 2935.
 Ibid at p 2934.
 Ibid at p 2935.
 Ibid at p 2934.
 Ibid at p 2935.