What you need to know:
What is sexting?
Sexting is using the internet or your phone to share nude/sexy pictures.
When sexting involves someone under 18, it can be ‘child pornography’ or an ‘indecent act’.
What is child pornography?
Child pornography is a picture of a young person who is:
- showing their private parts (including their genitals, anus, or breasts);
- posing in a sexual way;
- doing a sexual act; or
- in the presence of someone who is doing a sexual act or pose.
Child pornography can include pictures, videos, publications or even computer games. But a picture is only child pornography if it is offensive to the average person. That’s why a picture of a naked baby in a bath is not child pornography, but a picture of a naked teenager in a bed could be in some circumstances.
What is illegal about it?
Child pornography pictures are illegal if they are:
- asked for;
- received and kept; or
- sent, posted or passed around using the internet or a mobile.
The law in Victoria provides a limited defence for the person who appears in the picture. There is also a limited defence for any person who took or was given the picture, as long as they are no more than 2 years older than the person in the picture. But because these defences are very limited, the bottom line is that these actions can be crimes even if the picture is only of you, your boyfriend/girlfriend or someone else who says it’s ok.
It can also be a crime to share a nude/sexy picture of someone who looks like they are under 18, even if they are actually over 18 when the picture was taken.
Even if a picture is not child pornography, asking for or sending a nude/sexy photo can be an indecent act and this is a crime. An indecent act is usually a sexual act that the average person finds offensive.
A real life example:
An 18 year old boy received and kept six texts from a female friend with pictures of girls aged between 15-16 years either topless or in their underwear. The police searched his computer and mobile phone while investigating an unrelated matter. He pleaded guilty to child pornography charges and was placed on the Sex Offenders Register.
The maximum penalties for child pornography can be up to 15 years in jail and being placed on the sex offender register. The maximum penalty for an act of indecency is 10 years in jail if it involves a person under 16. If the indecent act involves a person who is 16 or 17, the maximum penalty is 5 years in jail.
The penalties are high because the laws were meant to stop adults from sexually abusing children. When the laws were passed, nobody realised that they might also be used against young people who took pictures of themselves or other people of their own age.
In some sexting cases, instead of using child pornography laws, the police might decide to:
- charge you with a less serious crime;
- send you to youth justice conferencing;
- give you a warning or caution; or
- let your parents or school decide your punishment.
The more serious the sexting incident (for example, if it involves harassment or threats), the more likely that police will press serious charges that could lead to sex offender registration.
If the person is under 18 when they commit the child pornography crime, the police must get the Attorney General’s permission before they can make child pornography charges under the national law. The police do not need to get this permission before making charges under the state law.
You may be placed on the sex offender register if you are found guilty of a child pornography or indecency crime. People on this register have to give their contact details to the police and inform them of any changes (like moving houses or switching jobs). They are not allowed to apply for or work in jobs involving children. For example, they are not allowed to coach junior sports teams or babysit children through a babysitting agency.
If you are under 18 when you commit a child pornography or indecency offence, and you are not on a sex offender register in another Australian state or overseas, you will not be placed on the register.
But if you are over 18 and found guilty of a child pornography offence because, for example, you took a naked/sexy photo of your girlfriend or boyfriend who was under 18, you will be placed on the register.
What should you do?
If you receive nude/sexy pictures or videos on the internet or on your mobile, you may not get into trouble if:
- you delete the pictures immediately and you let the sender know that you don’t want to receive any more of these pictures;
- you took the picture or got it from the person in the picture, and at the time the picture was received, you were no more than 2 years older than the underage person in the picture; or
- the pictures are of you.
You should NEVER forward these images onto other people.
Sexting can also be a form of harassment. For example, someone might keep bothering you with requests for a naked picture. Or they might send you a naked picture that you don’t want. Or they might threaten to send a naked picture of you to other people without your permission.
Sexting that involves harassment can also be considered stalking or a menacing, harassing, or offensive use of the internet or a mobile phone.
What is menacing, harassing or offensive use of the internet or a mobile?
It is a crime to use your mobile phone or the internet in an offensive way or to harass somebody. Something could be offensive or harassing if it makes a person feel disgusted, humiliated or threatened. When sexting is used to threaten or bother someone, it is against the law. The maximum penalty is 3 years in jail.
Real life examples:
A 20 year old boy posted 6 nude photos of his 18 year old ex-girlfriend on Facebook as revenge for breaking up with him. His ex-girlfriend reported this to the police and he removed the photos for a short time. When he re-posted those photos later that day, the Police arrested and charged him with posting indecent pictures. He was given 6 months home detention and was left with a criminal record.
In another case, a boy repeatedly sent unwanted sexy pictures to a new friend by SMS on his mobile. His friend was intimidated by the pictures he sent. He was charged with menacing, harassing or offensive use of a mobile for each SMS he sent. He was sent to jail for 12 months.
What if you didn’t know or agree to your picture or video being taken in the first place?
It is a crime for someone to take a picture or video of you doing a private activity if you didn’t know or didn’t agree. Private activities are things that you do in private when you don’t expect to be watched. They can include:
- using the toilet;
- taking a shower or bath; or
- having sex or doing a sexual act.
The maximum penalty for taking a picture or video of someone doing a private activity is 2 years in jail or a fine or both.
It is also a crime to take a picture of a person's privates (genital or anal region) in a place where they reasonably expect privacy (like in a public toilet). It's a separate offence to distribute that type of picture. Both of these crimes have a maximum penalty of 2 years in jail.
Other laws that can apply to sexting
When sexting involves a person who is under 16 a a person who is over 18, the person who is over 18 could be committing some other very serious crimes. This is because when you turn 18, you legally become an adult, and the law takes any kind of sexual interaction between an adult and a child very seriously.
When sexting is unwanted and happens at work or at school, it could also be a form of sexual harassment.
The courts in Victoria have also held that passing around sexual videos that were intended to be private can be a ‘breach of confidence’, and have awarded money damages to victims.
What can I do to stop people from sending images of me around the internet or through mobiles?
There are a number of things you can do to stop these pictures being sent around:
- If a picture is on a social networking site like Facebook, you may be able to report the picture and have it taken off the site.
- You can report something on Facebook here.
- For images of children under 13, parents can fill out a form to have that photo removed.
- Set privacy settings to allow you to review photo tags before they appear on your profile and your friends' newsfeeds.
- You can also make a report to your mobile phone company if you are receiving unwanted pictures or requests for pictures. Call your mobile phone company or go to their website for details.
- Apply for a protection order to stop a person from contacting you or sending out images to harass you.
- Send us a Lawmail. We can tell you what your options are, help you make a complaint, or write a letter to the person who is threatening to share your picture.
- Tell someone you trust - a parent, friend, school counsellor or teacher.
- You may also wish to speak to someone from the Kids Helpline on 1800 55 1800.
- Be aware that your teacher may feel that they have to report the incident to the police.
- Contact the police if the images are being spread without your consent, or if you feel unsafe or threatened.
- Be aware that you may be charged if you took and sent the picture. But this is less likely to happen in Victoria because there is a limited legal defence for young people who take selfies.
What should I do if I have a picture or text I am unsure about?
It's important to protect yourself by deleting any pictures you are uncomfortable with straight away. NEVER forward these images on to anyone else. If you're worried you may have committed a crime, you can send us a Lawmail or call Youthlaw on (03) 9611 2412.
If you decide to do any of these things, you should also have a look at our fact sheet on self-incrimination.
This information was last updated 28 November 2013.
***This Lawstuff page is brought to you by a grant from the Telstra Foundation and the hard work and support of NCYLC's volunteers, including volunteers from King & Wood Mallesons.***