With the progression of technology, we’ve all become accustomed to carrying a high functioning camera in our front pockets, accompanied by a photo gallery with snapshots of our entire lives. Often, there’s a photograph of a pretty sunset, or an apparently Instagram-worthy meal. Other times, there’s an intimate photograph, sent to or received by a romantic partner.
As the popularity of communicating electronically has increased, it’s become easier to maintain relationships. While absence makes the heart grow fonder, partners often keep the romance alive by sending one another intimate pictures. During the relationship, this feels harmless as the possibility of those pictures being shared with others is likely non-existent. Unfortunately, upon the breakdown of a relationship, this might become a more realistic concern. So, what happens when your intimate pictures still remain in your ex-partner’s front pocket?
Unfortunately, there’s no way to force an ex to delete pictures that you have sent to them during the relationship. However, pursuant to the Criminal Law Amendment (Intimate Images) Act 2018 (WA) (“the Amendment Act”), distributing or threatening to distribute intimate images without consent is a crime.
Distributing an intimate image
Pursuant to section 221BD of the Criminal Code Act 1913 (WA), a person who distributes an intimate image without consent can be sentenced to a maximum of 3 years imprisonment and a fine of $18,000. So, what exactly does “distributing an intimate image” mean?
An “intimate image” is any picture or video that shows:
the person’s genital or anal area, whether bare or covered by underwear;
in the case of a female person, 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, which is defined as being in a state of undress, engaging in a sexual act, using the toilet, showering or bathing.
A person “distributes” an intimate image if they:
communicating, exhibiting, selling, sending, supplying, offering or transmitting the image to a third party; or
make the image available for access by electronic or other means, such as by posting it online.
In July 2019, the first person to be convicted of a crime under this section was sentenced to a 12 month intensive supervision order. After posting his ex-partner’s intimate photographs online, the offender was spared imprisonment because:
he had mental difficulties at the time of the offences;
he did not attempt to extort the victim; and
he was genuinely remorseful.
Threatening to distribute an intimate image
In this era of social media, where images can be distributed to millions with the touch of a button and employers look to social media profiles to scope out prospective employees, a threat to distribute an intimate image is serious. These threats can leave parties anxious about whether it will eventuate and if it does, what the lasting impacts will be.
To combat this, the Amendment Act extends section 338C of the Criminal Code, which criminalises making threats to cause detriment another person, to include threatening to distribute an intimate image. A person is guilty of a “threat” offence if they make a statement or convey information which indicates that they intend to distribute an intimate image.
It is notoriously difficult to establish someone’s intention, which is why you should seek legal advice about whether a threat has actually been made.
How does this help me feel safe?
While these penalties punish the offender, they offer minimal help to reduce the anxiety of the victim when the images are still circulating and threaten to impact future employment, social lives and general wellbeing. To tackle this issue, the Court is able to order the offender to remove, retract, recover, delete, destroy or forfeit that intimate 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.
In order to remove the image/s from the deepest depths of the web, 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. 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, so there is a high likelihood of compliance.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.