If you like to take or share intimate images, here are a few recent changes to the Australian legal system that are worth being aware of.
‘Dick pic’ now has its own entry in the Oxford dictionary, which makes it a cultural phenomenon on a level with ‘binge-watch’ and ‘throw shade’.
But where Oxford has been relatively quick on the uptake, the Australian legal system is just now catching up. If you’re someone who likes to indulge in a little pic swapping on ’dating’ apps, some intimate Skyping, or making the occasional home movis, the boundaries have been fairly murky around the risks you might be exposing yourself to legally.
And if your images end up in the wrong hands, it can be hard to work out where to find help.
We spoke to Jessica Di Blasio, a member of the Image Based Abuse Team at the Office of the eSafety Commissioner — Australia’s leader in online safety — for a little guidance on keeping your ‘visual aids’ sexy, fun and safe.
First up — is it against the law to send nudes or dick pics?
“As far as I’m aware, there are no real legal issues with having or sharing sexually explicit images on your phone, provided everyone involved is a consenting adult,” says Di Blasio.
This is true for guys who like to show off their goods on dating apps as well. “It’s always good practice to get the other person’s consent before sending any explicit images,” says Di Blasio.
“That said, I’m not aware of any criminal implications of sending unsolicited nude photos to other adults on dating apps — though it’s definitely bad etiquette apart from anything else.
But doing it repeatedly to the same person, or in a way that’s offensive or harassing is illegal.”
“It’s always good practice to get the other person’s consent before sending any explicit images,”
To be clear, this is because under Commonwealth Law, using a carriage service (i.e. a telecommunications service) to menace, harass or cause offence is illegal, not because the images themselves are illegal.
“It’s also important to note that sending an unsolicited nude in a work/service/club context could be a form of sexual harassment if it is unwelcome,” says Di Blasio. Not to mention that viewing explicit materials could also contravene individual Codes of Conduct in the workplace.
Yet beyond sullying the odd political career experts say the consequences for perpetrators are not as severe as they perhaps should be given the practice is widely considered a form of online sexual harassment.
However, sending unsolicited dick pics may in some instances constitute a criminal offence under Commonwealth legislation (Telecommunications Act 1997),
in which it is a criminal offence to use a carriage service to harass, offend or intimidate another person.
Both Facebook and Twitter prohibit users from sending unsolicited dick pics: Twitter counts it as harassment and advises users on how to mute, block and report sensitive content, while Facebook's Community Standards prohibit both harassment and nudity — a policy which, according to a Facebook spokesperson, extends to its Messenger service.
What about images of other people?
Again, consent is the biggest factor. If a someome sends you a pic of themself, they are only consenting to sharing that image with you.
“Sharing someone’s intimate photo without their consent is a crime under the Commonwealth Criminal Code, and in most states and territories,”
“That includes sharing it on online forums or in chat apps and dating apps, and in some places it can include showing it to other people on your phone.”
Incidentally, it doesn’t matter if you can their his face or not. “Without consent, it doesn’t matter if the intimate image includes someone’s face, or whether the person you’re showing it to would be expected to recognise them or not. It’s still a crime at the Commonwealth level, and has now also been specifically legislated against in all states except Tasmania.”
…and those home movies?
You can still be the director/lead/cameraman of your own show. Just make sure everyone else is on board with the production.
“Always ask somebody if they are comfortable with you filming or taking a picture,” says Di Blasio. “Everyone involved needs to be an adult and have capacity to give consent — they can’t be drunk or under the influence of drugs. Use the same standard of consent as you would for having sex.”
“Always ask somebody if they are comfortable with you filming or taking a picture,”
Communication is crucial. If you’re going to pick up your smartphone during sex, talk about it beforehand. What are you going to be filming? Who will have copies of the images? How are they going to be used? Make sure everyone is fully informed and comfortable before you roll camera.
What happens if someone is sharing or using images of me without my consent?
Image-based abuse is the sharing, or the threat of sharing, someone’s intimate images without their consent. It’s sometimes called ‘revenge porn’ when it’s used to hurt or humiliate someone, but it also includes things like blackmail or ‘sextortion’ (demanding money to prevent images from being shared). If you’re a victim of image-based abuse, it can be hard to know what to do about it.
The good news is that the law is becoming more responsive to image-based abuse. The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 established a civil penalties scheme. Under this scheme, eSafety can help with removal of intimate images posted online, and in some cases they can also take action against the person who shared or threatened to share the intimate images.
“Technology and sex can make a cute couple — with some healthy boundaries.”
“The law is different in every state and territory, so taking action will depend a lot on where you are and what form the abuse takes,” says Di Blasio. “It’s important to remember it’s not your fault and eSafety can help get content removed once it’s been reported.
We provide a lot of step-by-step advice and support to make the process as smooth and fast as possible.”
The report form is straightforward and can be completed fairly anonymously. All that’s required is an email address.
What else do you need to know?
Technology and sex can make a cute couple — with some healthy boundaries.
“Being aware of the risks and respecting other people in our online behaviour will help to prevent image-based abuse,” says Di Blasio. And she warns that once an image is online, it can potentially be there forever.
“The internet is a very big place and it’s global, so it’s hard to know for sure what’s out there.”
Swapping pics and vids can be a fun (and really hot) part of your sex life. As long as everyone’s given clear consent and is treated with respect, you can work those angles any time you like.
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