It is a criminal offence to distribute an invasive image of another person knowing, or having reason to believe, that the person does not consent to its distribution. This is often referred to as image-based abuse. There are criminal offences relating to image-based abuse at both State and Commonwealth levels.

Aside from potentially being a criminal offence, image-based abuse can also be investigated by the eSafety Commissioner, who can require the removal of images from websites, and can issue civil penalties in certain circumstances. See the eSafety Commissioner's website for more information.

Distribution of invasive images – South Australian law

Section 26C of the Summary Offences Act 1953 (SA) prohibits the distribution of an invasive image where a person knows, or has reason to believe, that the other person does not consent to the distribution.

An invasive image is a moving or still image in which the person is shown in a place other than a public place

A private act includes a sexual act and using a toilet [s 26A(1)].

An invasive image can include an image that has been altered by digital or other means [s 26A(1)].

The definition of invasive image excludes images that fall within the standards of morality, decency and propriety generally accepted by reasonable adults in the community [s 26A(3)]. This might include, for example, parents sharing photos of their baby to family.

The maximum penalty is a fine of $20,000 or imprisonment for 4 years if the person depicted is younger than 17, or a fine of $10,000 or imprisonment for 2 years in any other case.

It is a defence to a charge of distributing an invasive image if it was for a medical, legal, scientific or law enforcement purpose or if it was undertaken by a licenced investigation agent in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit [s 26C(2)].

Threat to distribute an invasive image

It is also an offence to threaten to distribute

with the intention of causing the person fear or being recklessly indifferent as to whether fear is caused [Summary Offences Act 1953 (SA) s 26DA(1), (2)].

Indecent filming is defined in s 26A(1) and includes filming someone in a state of undress in circumstances where they would expect privacy.

A threat may be directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct. Both explicit and implicit threats are recognised [s 26DA(4)].

The maximum penalty is a fine of $10,000 or imprisonment for 2 years if the person depicted is younger than 17, or a fine of $5,000 or imprisonment for 1 year in any other case.

It is a defence to a charge against s 26DA that the person depicted in the image consented to that particular distribution of the image or to the distribution of the image generally. Such a defence may only be relied upon if the person depicted had not withdrawn their consent [s 26DA(3)].

It is also an offence to engage in humiliating or degrading filming or distribute an image obtained by humiliating or degrading filming - see Humiliating or Degrading Filming.

Transmission of sexual material without consent – Commonwealth law

The Commonwealth Criminal Code is set out in Schedule 1 to the Criminal Code Act 1995 (Cth).

It is an offence, under s 474.17A of the Criminal Code, to use a carriage service to transmit sexual material of another person who is or appears to be 18 years or older if the person transmitting the material knows that the person depicted does not consent to the transmission or is reckless (gives no thought) as to whether they consent.

Carriage service is broadly defined in the Telecommunications Act 1997 (Cth) and includes telephone calls, text messages and internet-based services such as social media and email. Transmit includes make available, publish, distribute, advertise and promote [s 474.17A(4)].

For the purposes of s 474.17A, sexual material means material that depicts

Sexual material includes material in an unaltered form and material that has been created or altered using technology [s 474.17A(2)]. This is intended to capture images, videos and audio that have been altered, edited or entirely created by digital technology (including artificial intelligence), sometimes referred to as 'deepfakes'.

The maximum penalty for this offence is imprisonment for 6 years.

Section 474.17A(1) will not apply if the transmission of sexual material is for a legitimate medical, scientific or law enforcement purpose or a reasonable person would consider the transmission to be acceptable [s 474.17A(3)].

Section 474.17AA creates aggravated offences if a person commits an offence against s 474.17A(1) and

The maximum penalty for an aggravated offence is imprisonment for 7 years.

If the material depicts a person who is, or appears to be, under 18, then it may be considered child abuse material and is covered by other sections of the Commonwealth Criminal Code.