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The Law on Revenge Porn: Distributing Intimate Images

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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:

  1. he had mental difficulties at the time of the offences;
  2. he did not attempt to extort the victim; and
  3. 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.

So They Got a VRO? What’s Next?

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This post should be read together with our Blog Post “Restraining Orders in Western Australia” which provides a detailed description of the different types of restraining orders available in Western Australia and the possible grounds for seeking each restraining order.

If someone has sought a restraining order against you and is successful, the Court will issue an Interim Violence Restraining Order stopping you from being able to contact the person protected.

We note that if there is an interim order in place, it is a criminal offence to breach the Order.

When you are served with the notice you have two options:

  1. You do nothing and risk having orders made final against you in your absence
  2. You file an objection with the Court within 21 days of being served by police, which will lead to the matter proceeding to further hearings and potentially a trial.

 

Why Does Having a Lawyer Help Me?

Just because someone has been granted an interim violence restraining order (“VRO”) or the matter has been listed for a hearing, does not mean that you cannot contest the application or having your defence heard on a final basis.

If you have a friend or family member contact the person protected on your behalf, this is still a breach of the VRO. Lawyers, however, are exempt from this, and are able to liaise with the person protected to try and negotiate a different outcome that both parties consent to. In the event an agreement cannot be reached, it is beneficial to have a lawyer represent you in your trial as we are able to effectively present your position and argue your case with the backing of experience and knowledge surrounding the requisite legislation.

There are three main courses of action available when it comes to negotiating VROs, depending on the nature of the accusations and relationship. These options are:

  1. Writing to the person protected and requesting they cancel their application on the grounds that the application is frivolous and vexatious and putting them on notice as to costs.
  2. Drafting and providing a Mutual Undertaking to the person protected to sign.
  3. Drafting and providing a Conduct Agreement Order to the person protected to sign.

In some circumstances it may be appropriate to consider a consent order.

 

What is a Mutual Undertaking?

A mutual undertaking is an agreement between the parties to act in a certain way and avoid certain behaviours (for example not going near the other party). If the undertaking is mutual, it means that both parties are agreeing to abide by the agreement.

An undertaking is not a court order and is not enforceable by police. Breaching an undertaking will not result in criminal charges, however it will make it easier for the party not breaching the undertaking to seek another VRO in the future (if appropriate).

Undertakings can be agreed to at any time by the parties and are filed with the Court once the agreement has been signed with both parties so that it is aware of how the parties have resolved the matter and to assist in the event of further proceedings.

 

What is a Conduct Agreement Order?

Conduct Agreement Orders are only used in Family Violence Restraining Orders (FVROs) and essentially occur when the person bound consents to the Orders being made against them but on a without admission basis. This means you are agreeing to have an Order against you that is legally enforceable and has criminal consequences if breached, however, there is no finding by a Court that you have perpetrated family violence against the person protected.

The Conduct Agreement Order can replace the FVRO meaning you could attempt to negotiate more lenient terms, for example in the event there are children of the relationship and you are wanting to be able to communicate with your children.

At Carter Dickens Lawyers we have experience in assisting parties in obtaining and responding to VRO’s. We have fixed fee billing options available when it comes to responding to VRO matters, whether it be attempting to settle the matter out of court or representing you in a trial.

Please contact us on (08) 9408 5212 where we can arrange a meeting with one of our Lawyers to discuss your legal options with regard to a VRO you have had taken out against you.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

Social Media as “Evidence” in the Family Court

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The use of evidence obtained through various social media outlets has become a feature in many Family Court proceedings around Australia. Evidence of private conversations, photos, videos, shares and other social media activity we almost all engage in has found its way into the realm of admissible evidence.

Unfortunately, most people do not understand the potential repercussions of placing their life, private affairs and images in the public arena. We will explore the impact of social media as “evidence” and provide insight into the admissibility of this type of evidence in Western Australia.

 

Admissible Evidence in Family Law

Family law proceedings allow parties the opportunity to present “documents” as evidence to the judicial officer through tendering it to the Court. Judicial officers may then decide how to weigh evidence that has been admitted; whether to give any weight to normally inadmissible material; and whether to direct the parties to provide particular evidence.

Under Section 2B of the Acts Interpretation Act 1901 (Cth), a “document” is defined as any “record of information”, including (amongst other examples):

  1. anything on which there is writing; and
  2. anything from which sounds, images or writings can be reproduced with or without the aid of anything else.

Given this interpretation, content from social media such as Facebook, Instagram, Snapchat, LinkedIn, Twitter and WhatsApp could be regarded to be within this definition.

Note that the Evidence Act 1906 (WA) and the Evidence Act 1995 (Cth) each set out their own ways that social media can be used as evidence. Beyond merely satisfying the definition of an admissible “document”, there are further limitations to the potential admissibility of evidence. They are:

  1. Relevance
  2. Judicial Discretion
  3. Varying weight given to the evidence

 

Relevance

The starting point for any evidence is that it must be RELEVANT. That is, the social media content must be considered by the Court to be something that relates to the existence of a fact in your case. Broadly, relevant evidence will relate to the issue in dispute, support your claim and be able to advance your claim. If any of these fails, it is unlikely to be considered sufficiently relevant.

 

Judicial Discretion

The Family Court has a broad DISCRETION, pursuant to Section 69ZT(1) of the Family Law Act 1975 (Cth), to exclude the provision of ordinary rules of evidence to child-related proceedings. This discretion essentially allows courts to render social media evidence, which would otherwise likely be deemed hearsay or opinion evidence, to be admissible.

 

Weight of Evidence

Despite being admitted, social media evidence may be attributed the WEIGHT a judicial officer sees fit pursuant to 69ZT(2) of the Family Law Act 1975 (Cth). Recent case authority has shown that it is likely that the Family Court will be cautious when attributing weight to social media content given the nature and reliability of this type of evidence.

 

Although social media may be considered admissible evidence, the ability of a party to admit this evidence may be limited by the varying rules of evidence and judicial discretion. Carter Dickens Lawyers would advise parties to protect themselves by limiting social media which may be relevant to their proceedings.

In addition, parties should note that it is an offence to publish any images or posts which identify a party or child to family law proceedings (Family Law Act 1997 (WA) s 243; Family Law Act 1975 (Cth) s 121).

 If you have a Family Law matter and social media activity is of concern to you, please contact us on 08 9408 5212 for a free 15-minute phone consultation.

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 case in question.

Restraining Orders in Western Australia

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If someone is being violent or threatening towards you, or is acting in an inappropriate manner that makes you feel scared and unsafe, you have the option of taking a restraining order out against them.

What is a restraining order?

A restraining order is a civil order made by the court that gives a criminal consequence to certain behaviours that may not usually be criminal offences. This helps to protect you from not only violent acts, but also from things like harassment, repeated offensive comments, and stalking or cyber-stalking. Breaching a restraining order is a criminal offence, and breaching a restraining order three times means the person will be sent to prison.

There are three types of restraining orders in WA: Family Violence Restraining Orders (FVRO), Violence Restraining Orders (VRO) and Misconduct Restraining Orders (MRO). They all have differences that you should know about before applying.

Family Violence Restraining Orders

FVROs are a relatively new category of restraining orders that was introduced by WA Parliament in 2017. It is aimed at providing more protections for victims of family violence. If the person that is committing violence against you or is making you feel unsafe is a family member, you should apply for an FVRO.

A family member can be your former or current spouse, de facto partner, any relative (including children, parents, grandparents, step-family and all other relatives related by blood, marriage or de facto partnership), and any other person that you have had an intimate relationship with.

For an FVRO to be ordered by the court, there must be some form of family violence. This can include a situation where a family member is acting violent towards you, or is threatening to be violent. It can also include a situation where a family member is trying to control you, coerce you into doing something you don’t want to do, or is acting in a way that makes you feel scared and unsafe. The violence doesn’t have to be physical abuse. It can be emotional, psychological or financial abuse as well.

For example, let’s say you have recently separated from your emotionally abusive partner who had been constantly saying insulting things towards you, and your ex-partner is now constantly harassing you about the separation to the point that you feel unsafe and scared. You should then consider getting an FVRO out against him, because it will then become illegal for your ex-partner to harass you. If your ex-partner keeps harassing you, then he/she will be in breach of the FVRO and will have to face criminal consequences.

Violence Restraining Orders

If the person that is committing violence against you or is making you feel unsafe is not a family member, then you should apply for a VRO.

A VRO is very similar to a FVRO, but can only be ordered where the person being violent or inappropriate towards you is not your family member. For example, it could be someone in your neighbourhood that keeps coming by your house to make threats of assault against you, and you feel very unsafe and scared. Then you should consider getting a VRO out against that neighbour.

Misconduct Restraining Orders

An MRO is aimed at protecting you from inappropriate behaviours like harassment and stalking where there is no threat of violence. For example, if your ex-partner keeps coming to your workplace to see you, and you find this inappropriate, you may consider getting an MRO out against them.

Our firm can assist you with making restraining orders if you are feeling unsafe, so don’t hesitate to contact our office for more information.

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.

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Phone: (08) 9408 5212

info@cdlawyers.com.au