By: Emily Walton, Bethany Entwistle
Recently Parliament enacted the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Act 2022 in response a form of sexual exploitation, often referred to as “revenge pornography”.
 
The Act amends the Harmful Digital Communications Act 2015 (HDCA) by inserting a new offence in section 22A.  This will be a game changer for individuals whose intimate visual recordings are posted without their consent.
 
Under section 22A it is an offence for a person, without reasonable excuse, to post a digital communication that is an intimate visual recording of a victim:
 
  1. Knowing that the victim has not consented to the posting; or
  2. Being reckless as to whether the victim has consented to the posting
 
Furthermore, an individual under the age of 16 years cannot consent to the posting of an intimate visual recording of which they are the subject.
 
While it has always been an offence under the HDCA to share online ‘intimate’ photos or videos of another person, responsibility for proving the offence previously lay with the victim. She or he had to prove there was intent to harm, that actual harm was done, and that consent had not been given.  Proving that there was ‘no consent’ can not only be difficult but traumatising for victims.
 
Under section 22A, however, the burden is on the offender rather than the victim, through the presumption of harm. So in other words, the sharer of the visual recording must prove consent was given.
 
The maximum penalties for an individual are up to two years imprisonment or a fine of up to $50,000 and for companies, up to $200,000.00
 
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