Posted on 19 Jan. 2016
The women who allegedly distributed explicit photos of Collingwood AFL players could face up to two years in jail, according to criminal lawyers.
New offences were created in Victoria in 2014 to address legal issues arising from ‘sexting’ and ‘revenge porn’.
Slater and Gordon Criminal Lawyer Emma Aldersea said while it is perfectly lawful for two consenting adults to exchange intimate photos, it is a criminal offence in Victoria to distribute images of another person to a third party.
“There is absolutely no criminal wrongdoing on the part of the Collingwood players, but the women could be held criminally liable for distributing the explicit photos,” Ms Aldersea said.
“For a person to be charged with the offence of ‘distribution of an intimate image’ under the Summary Offences Act 1996, they need to meet three criteria.”
The image needs to be intimate in nature.
This includes any photo or video showing sexual activity, a person in a sexual context or manner, or a person’s genitals or breasts (females only).
The image must have been intentionally distributed to a third party.
The offence only applies to distribution of an intimate image of another person to a third party. It does not apply to people who send intimate images of themselves.
The distribution of the image is contrary to ‘community standards of acceptable conduct’.
The legislation details what can be taken into account when determining ‘community standards of acceptable conduct’, including the nature and content of the image, the circumstances of its capture and distribution, certain personal attributes of the persons depicted in the image, and the effect on the privacy of the persons depicted in the image.
Ms Aldersea noted there are exceptions to the offence.
“If the Collingwood players expressly or impliedly consented to the distribution of the photos, then the offence of ‘distribution of an intimate image’ does not apply,” Ms Aldersea said.
“The laws go further and even allow an exception if the person in the picture could reasonably be considered as having given consent, as long as the person in the image is not a minor.
“A court would consider all of these issues before coming to a determination, but if found guilty; a person could be sentenced to a maximum of two years imprisonment.”
Ms Aldersea also said the publishers of the images in the media could also be liable.
“There a number of variables to be considered when determining criminal liability and it is not as straightforward in regards to the corporation or individual responsible for publication of the photos,” Ms Aldersea said.
“However, the publishers may be civilly liable if a court found the imputations of the images and the accompanying article caused reputational harm to the Collingwood players involved.”
Ms Aldersea said anyone engaging in ‘sexting’ should think twice before sending explicit images.
“My advice if you're sending intimate photos of yourself is to be very selective when choosing the recipients and certainly never send them to anyone underage,” Ms Aldersea said.
“If you’ve received intimate photos from another person, think very carefully before you send them to a third party, even if it’s just one mate who promises to keep it secret.
“You could be charged with a criminal offence, which could result in a police record that may impact your future employment opportunities and overseas travel.
“Even threatening to distribute intimate photos of someone to a third party is an offence which carries a maximum sentence of one year in prison. You need to ask yourself if it’s worth it.”