Prior to the last election, the Queensland government pledged to create a new offence to deal with the increase in non-consensual sharing of intimate photographs and images, otherwise known as “revenge porn”. Queensland currently does not have an offence that specifically covers “revenge porn” situations, especially where the images have been uploaded onto Facebook, Instagram or other forms of social media. Current criminal provisions such as stalking or use of a carriage service to menace/harass/cause offence do not necessarily cover the full range of revenge porn behaviours.

The Criminal Code (Non-Consensual Sharing of Intimate Images) Bill is currently before the Queensland Parliament.

Whilst there arguably is a gap in the law so far as revenge porn is concerned, the proposed bill does not necessarily solve all problems.

The new Bill purports to:

• Create a new offence prohibiting the non-consensual distribution of an intimate image of another person in a way that would cause distress reasonably arising in all of the circumstances; and
• Create two new offences prohibiting threats to distribute an intimate image without consent.

One issue with the proposed legislation relates to the test of “distress”.  This is an entirely new test and arguably sets a low threshold for action.  This increases the risk that persons could be charged with a criminal offence for behaviour that barely rises to the criminal standard.

More concerningly, the offence provisions appear to remove the element of intention.  This means that a person may still be charged and convicted of the offence regardless of whether they had criminal intent at the time of the offence.

Revenge porn, especially in the context of technology and the global reach of the internet, is a complex issue.  This complexity should be properly reflected in any penal legislation.