‘Sexting’ and Australian law

by The FindLaw Team

If we took a moment to think about it, most of us are carrying computers in our pockets and it’s amazing to actually reflect on the impact that technology has had on our lives. The strides that technology has made over the past few years in particular is something to behold, and the fact of the matter is that we aren’t just carrying mini computers all the time, but we also have access to high quality photographic and video making machines, which has also been fantastic…but on the other hand, easy access to such equipment has also given rise to a new term: sexting.

Teenagers may be particularly vulnerable to actions involving sexting due to the fact that the laws which are commonly used against the production of child pornography, have also been applied in the past to certain sexting cases when the parties involved have been under the age of 18. Needless to say, the current laws as it stands can have a dramatic impact on teenagers who can potentially find themselves in trouble when they decide to share intimate pictures of themselves with others.

The law

Producing images of a sexual nature and sharing it with other people probably began the moment that humans worked out how to capture an image that could be easily distributed. However, with the ubiquity of cameras on phones and the ease in which images and videos can be passed around now – and combining such technologies with raging teenage hormones – can be a recipe for disaster when the law becomes involved.

First, the producing and distribution of child pornography is unacceptable in any form with State, Territory, and federal jurisdictions enacting a number of laws which treats the offence extremely seriously. However, one of the issues that has arisen in conjunction with the rise of mobile photography, is that some of the same laws dealing with child pornography have also been used against teens in consensual relationships who just so happened to have shared explicit images with others.

Taking a quick look at the laws, we can see how the provisions can sometimes be applied towards matters involving sexting.

Using the Commonwealth statute for example, Pt. 10.6 of the Criminal Code Act 1995 (Cth) makes it an offence for anyone to access, transmit, publish, possess, control, produce, supply or obtain child pornography, and if we delve deeper into the Part, we can see that under the provisions of s 474.19, a person is guilty of an offence if he or she:

  • accesses material; or
  • causes material to be transmitted to himself or herself; or
  • transmits, makes available, publishes, distributes, advertises  or promotes material; or
  • solicits material using a carriage service and the material is child pornography.

Section 474.19 can also be read in conjunction with s 479.20 of the Commonwealth Act, which makes it an offence for a person to possess, control, produce, supply or obtain child pornography material for use through a carriage service.

State laws are also similar in nature to Commonwealth legislation and looking to s 91H(2) of the Crimes Act 1900 (NSW) for instance, makes it an offence to send, supply, transmit or communicate material of a person who appears to be, or is implied to be a child who is engaged in, or appears to be engaged in a sexual pose or activity.

The important thing for teenagers to be aware of is that anyone who has in their possession a naked, or even a partially naked photo of a person under the age of 18 on their phone or computer, can be guilty of an offence, along with the producing and distributing of the image or video to other parties.

Oh, and once an image or video is posted online, it’s there forever.


We welcome your feedback

Hi there! We want to make this site as good as it can for you, the user. Please tell us what you would like to do differently and we will do our best to accommodate!

Protected by FormShield

We've updated our Privacy Statement, before you continue. please read our new Privacy Statement and familiarise yourself with the terms.