In New South Wales, strict laws are in place to protect individuals from the non-consensual recording, sharing, or threatening to share such images. These actions are considered serious criminal offences under the Crimes Act 1900 (NSW) and carry significant penalties.

What Does the Law Say?

Under sections 91P, 91Q, and 91R of the Crimes Act, it is a criminal offence to:

• Record an intimate image of another person without their consent;
• Share or distribute an intimate image without consent;
• Threaten to record or distribute an intimate image without the person’s consent.

The maximum penalty for these offences is 100 penalty units, up to 3 years of imprisonment, or both.

What Is an ‘Intimate Image’?

An intimate image refers to a photo or video that depicts:

• A person’s genital or anal area (even if covered by clothing);
• A woman’s breasts; or
• A person engaged in a sexual act or activity, regardless of whether they are fully clothed.

When Is Consent Required?

Consent is the central issue in these types of offences. For consent to be valid, it must be:

• Freely and voluntarily given;
• Given by a person who is fully aware of the recording;
• Given by someone who is not under pressure, coercion, or duress;
• Given by someone who has the capacity to understand and agree.

If the person was unaware, incapable, or felt forced into the situation, the law considers the act non-consensual.

Key Offences 

Recording Without Consent

It is illegal to intentionally record an intimate image if the person depicted did not give consent, or if the accused was reckless as to whether consent was given.

Distributing Without Consent

Sharing or sending intimate images of a person without their permission also constitutes an offence, even if the image was originally obtained lawfully.

Threatening to Record or Share

Even if no image is actually created or shared, threatening to do so without consent is a crime under NSW law.

Prosecution and Young People

If the person accused is under 16 years of age, legal action cannot proceed without approval from the Director of Public Prosecutions (DPP).

Possible Defences to the Charges

While these offences are taken seriously, there are certain defenses that may apply in specific situations:

• Consent: If the person depicted freely and knowingly consented to the recording or distribution.
• Non-intimate Image: If the image does not legally qualify as ‘intimate’.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong-Yuan, paralegal.

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