Co-authored by: Isabel Strahan
- It is a criminal offence to share intimate images of a person without their consent.
- You may be found guilty of this offence if you were reckless in gaining consent.
- If found guilty, you may face a $11,000 fine, 3 years imprisonment or both.
- It is against OnlyFans Terms of Service to distribute any media posted by content creators.
Amidst the chaos of the Married at First Sight nude photo scandal, the legality of sharing intimate images was debated across dinner tables and through television screens. The producers of the reality TV show had Australia wondering whether it was a malicious act, Olivia and the other contestant’s intentions if the image being published on OnlyFans was relevant and in direct extension, was the sharing of the image even legal?
In NSW, a person may be prosecuted for the distribution of an intimate image without consent under Section 91Q of the Crimes Act 1900 (NSW). This provision attempts to protect people against the act commonly referred to as ‘revenge porn’ where ex-partners, friends, and those alike, share images of someone without their knowledge. Those found guilty of this offence face up to 100-penalty unit fine equivalent to $11,000, 3 years imprisonment or both.
It is important to note that it is also a criminal offence to threaten to record or distribute intimate images under Section 91R of the Crimes Act.
What is considered consent?
Consent as to the distribution of intimate images is found to mean the free and voluntary agreeance to do so, as detailed in Section 91O of the Crimes Act. However, someone is still considered guilty of this offence if they acted in a way that was reckless in gaining consent.
Without free and voluntary agreeance to distribute, the Court will regard the sharing of the image to be non-consensual.
What if the image is already shared by the person in the picture?
As stipulated in Section 91O of the Crimes Act, if a person freely and voluntarily consents for the image to be taken, they are not assumed to have consented for the image to be distributed.
Additionally, if a person has distributed an intimate image of themselves, it is not to be regarded as having consented to the further distribution of the image or any image in the future.
Therefore, the fact that an image was uploaded onto OnlyFans has no relevance as to the gaining or giving of consent.
What is considered an intimate image?
An intimate image is defined within Section 91N of the Crimes Act to include images of private parts, images of a private act or taken in circumstances where a reasonable person would expect to be afforded privacy. This broad definition furthers the purpose of the provision and serves to encompass a broad scope of what is considered to be an intimate image in hopes of awarding the same intended protection.
What is classified as distribution?
Distribution is found to encompass the sending, supplying, exhibiting, transmitting or communication of the images to another. If someone makes the intimate image available for viewing or grants access to another person, that is also classified as distribution pursuant to Section 91Q.
What must be proven?
In order for an individual to be charged with distributing intimate images without consent, the following must be proven beyond reasonable doubt:
- The intimate image was shared,
- Without consent, or
- The person that shared the image was reckless in ascertaining consent.
Therefore, the intention of the distributor need not be malicious or for revenge. The Court must simply be satisfied that an image, which is intimate in nature, was shared without consent, or done recklessly as to gaining consent.
What if the image is on Only Fans? Is it then considered a public image?
OnlyFans is a subscription-only service that provides a platform for the sharing of exclusive content- mainly catering to adult services. In addition to the distribution of intimate images without consent being a criminal offence, it also goes against the Terms and Conditions of Service for OnlyFans.
The Terms of Service clearly states that users of the platform are unable to distribute any material posted by content creators, they are inhibited from selling, renting, transferring, or sharing their account details and unable to use the content accessed to stalk, bully, abuse, harass, threaten, or intimidate.
The Terms of Service is a binding contractual agreement, executed by ticking the ‘I Agree’ box.
The controversy of reality TV has been debated amongst co-workers, family, and friends- all questioning whether it is rotting our brain or an accurate reflection of human nature. However, Married at First Sight has shone an incredibly valid light on image-based abuse and the numerous legal issues regarding the distribution of intimate images. In the world of modern dating, and at a time where everything can be accessed, uploaded, and shared on the internet with the touch of a button, humility and empathy seem to be lost. The justice system aims to protect people from criminal acts, and the Courts do not shy away from examining the sharing of intimate images, and those who illegally share pictures will be dealt with by the law.
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