208Prosecutions to be sanctioned by Crown Law Officer

208 Prosecutions to be sanctioned by Crown Law Officer A prosecution of an offence against this Division cannot be begun except by the direction of a Crown Law Officer. 208AA Definitions consent means free and voluntary agreement. Criminal Code Act 1983 169 distribute, in relation to an image, includes engaging in the following conduct, whether manually, electronically, digitally or in any other manner: (a) publish, exhibit, show, communicate, send, supply or transmit the image to another person; (b) make the image available for viewing or access by another image means a moving or still image in any form. Examples for definition image 1 A file stored on a computer. 2 A photo stored on a phone. intimate image means an image that depicts or has been altered to appear to depict: (a) a person engaged in a sexual act of a kind not ordinarily seen in public; or (b) a person in a manner or context that is sexual; or (c) the genital or anal region of a person, whether bare or covered by underwear; or (d) a breast, whether bare or covered by underwear, of a female person or of a transgender or intersex person who identifies as female. 208AAB Recording or capturing intimate image without consent (a) the person intentionally records or captures an image of (b) the image is an intimate image and the person is reckless in (c) the other person did not consent to the recording or capturing of the image at the time it was recorded or captured and the person is reckless in relation to that circumstance. Criminal Code Act 1983 170 subsection (1) if the image: (a) was recorded or captured by a law enforcement officer acting reasonably in the performance of the officer's duty; or (b) was recorded or captured for the purpose of reporting unlawful conduct by the other person to a law enforcement officer; or (c) is of a person incapable of giving consent and was recorded or captured: (i) for a scientific, medical or educational purpose; or (ii) in other circumstances that a reasonable person would regard as acceptable. Example for subsection (2)(c)(ii) Taking a photograph or video of a naked newborn relative. (3) A person under 16 years of age is taken to be incapable of consenting to the recording or capturing of an intimate image of the 208AB Distribution of intimate image without consent (a) the person intentionally distributes an image of another (b) the image is an intimate image and the person is reckless in (c) the other person did not consent to the distribution and the person is reckless as to the lack of consent. (2) Subsection (1) does not apply to the distribution of an intimate image in the following circumstances: (a) to only the person depicted in the image; (b) by a law enforcement officer acting reasonably in the performance of the officer's duty; (c) for the purpose of reporting unlawful conduct to a law enforcement officer; Criminal Code Act 1983 171 (d) when required by a court or reasonably required for the purpose of a legal proceeding; (e) for a scientific, medical or educational purpose; (f) by a person solely in the person's capacity as an internet service provider, internet content host or a carriage service provider; (g) of a child, or other person incapable of giving consent, in circumstances that a reasonable person would regard as acceptable. Example for subsection (2)(e) A doctor sends an image of a female patient's breast to another doctor for a second opinion about the patient's medical condition. Example for subsection (2)(g) Sharing a photograph or movie of a naked newborn relative. (3) A person under the age of 16 years is taken to be incapable of consenting to the distribution of an intimate image of the person. (4) A person who consents to the distribution of an intimate image on a particular occasion is not, by reason only of that fact, to be regarded as having consented to the distribution of that image or any other image on another occasion. (5) A person who consents to the distribution of an intimate image to a particular person or in a particular way is not, by reason only of that fact, to be regarded as having consented to the distribution of that image or any other image to another person or in another way. (6) A person who distributes an intimate image of the person is not, by reason only of that fact, to be regarded as having consented to any other distribution of the image. (7) This section does not limit the grounds on which it may be established that a person does not consent to the distribution of an intimate image. 208AC Threaten to distribute intimate images (a) intentionally threatens to distribute an intimate image of Criminal Code Act 1983 172 (b) intends the other person to fear that the threat would be (2) In a prosecution for an offence against this section: (a) a threat may be made by any conduct, whether explicit, implicit, conditional or unconditional; and (b) it is not necessary to prove that the other person actually (c) a person may be found guilty even if carrying out the threat is impossible. Examples for subsection (2)(c) 1 The image does not exist. 2 Technical limitations prevent the person from distributing the image. 208AD Prosecution of child to be approved A prosecution of a child for an offence against this Division must not be commenced without the consent of the Director of Public Prosecutions. 208AE Court may order rectification (1) A court may order a person found guilty by the court of an offence under this Division to take reasonable action to remove, retract, recover, delete or destroy any intimate images related to the offence within a stated period. (2) A person commits an offence if the person: (a) knows the person is subject to an order under subsection (1); and (b) intentionally engages in conduct; and (c) the conduct results in non-compliance with the court order and the person is reckless in relation to that result. Criminal Code Act 1983 173