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15 Feb 2018

There has never been a time when access to powerful communication tools has been more widespread and available. Yet this power to communicate has generally not come with a greater understanding of the potential to abuse that power.  Quite the opposite.  There are many parts of society where this access is second-nature, rarely questioned and barely moderated.  But what does the law say about what we communicate and the potential consequences of either woefully uninformed or otherwise malicious acts online?

A recent Australian study found that 1 in 5 people have been the victim of electronic image-based abuse. This refers to any circumstance where images are used to control, abuse or humiliate another person.  The data also showed that 1 in 3 people aged between 16 and 29 have experienced at least one instance of such abuse.  Men and women are almost equally likely to have been targeted by non-consensual image sharing.

Various laws have been introduced across the country in an attempt to address such actions, which can also be considered a form of domestic violence. Although largely aimed at protecting young people, a difficulty with some new laws in other states has been that young people have seen amongst the highest rates of convictions – 30% being aged between 10 and 17.

In WA, the government has adopted a different method of targeting image-based abuse, through changes to the laws on restraining orders. Family Violence Restraining Orders allow the courts to restrain a person from cyber-stalking or publishing images intended to harm a victim, as well as ordering them to remove material already online. Breaching an order will result in charges that carry a jail sentence of up to two years. Restraining orders can generally be taken out against anyone over the age of ten. It is yet to be seen how effective this approach will ultimately be.

Although the state-based age of physical consent is 16, the national law provides a person under 18 does not have the ability to consent to explicit electronic messaging, regardless of having sent an image willingly. When someone under 18 receives or sends explicit images involving a person under 18, it can be considered child pornography, or an indecent act or recording.  A teenager or child having an explicit image even of themselves on their personal device is enough to be considered child pornography.

Most users of online communications are likely unaware of the potential for serious issues and legal consequences. Convictions and criminal records have already become a reality for some.  This is an area where there is no substitute for knowledge – both to warn against the pitfalls and ultimately to empower potential victims.

MARCUS HODGE

This is general information only and does not constitute legal advice. If you would like further information in relation to this matter or other legal matters, please contact HHG Legal Group’s Albany office on 9481 2322.