Image-based abuse charges in NSW: the law is broader than most people expect – and so are the consequences
Image-based abuse – the recording or distribution of intimate images without the consent of the person depicted – is a criminal offence in NSW, and the law is substantially broader than most people who find themselves investigated or charged expect it to be. It does not apply only to images posted publicly on social media. It is not limited to images that were taken without the person’s knowledge. It does not apply only to the original person who distributed the image – someone who receives an intimate image and forwards it without the depicted person’s consent can also face criminal liability. And the offence does not depend on motive: it turns on consent, not on whether the distribution was intended to cause harm.
With BOCSAR data showing technology-facilitated abuse continuing to rise across NSW and police dedicating significant investigative resources to digital sexual offences, image-based abuse charges are becoming more common. Understanding what the law covers, how investigators build these cases, and what options are available if you are charged is important from the earliest stage of any investigation.
What the NSW legislation actually says
The primary NSW offences are contained in Part 3 of the Crimes Act 1900 (NSW), which was amended to insert specific image-based abuse provisions. Section 91Q creates the offence of recording an intimate image of another person without their consent. Section 91R creates the offence of distributing an intimate image without consent. Section 91S creates the offence of threatening to record or distribute an intimate image. Each offence has a maximum penalty of three years imprisonment. Where aggravating circumstances apply – for example, where the person depicted is under 16, where the material was widely distributed, or where the conduct was part of a pattern of stalking or coercive behaviour – the conduct may also attract additional charges under other provisions.
An “intimate image” is defined in the Crimes Act to include: an image of a person’s genitals, anal region, or female breasts in circumstances where a reasonable person would expect privacy; an image of a person engaged in a private act; and an image that has been altered to appear to show those things. The definition is deliberately broad. Images do not need to involve explicit sexual activity – the test is whether a reasonable person in the depicted person’s circumstances would expect privacy. Images taken in a bedroom, bathroom, or during sexual activity will ordinarily satisfy this test.
Consent to recording is not consent to distribution
The most consistently misunderstood aspect of image-based abuse law is the distinction between consent to recording and consent to distribution. A person who freely and consensually participated in the recording of intimate images within a relationship has consented only to that recording in that context. That consent is not transferable to any other use of the images. Distribution requires its own separate consent – a specific, current agreement to share the images in the manner and to the audience proposed.
This means that the overwhelming majority of image-based abuse prosecutions involve images that were originally recorded with the full consent of the person depicted. The images exist lawfully; the offence arises when they are distributed – whether online, via messaging applications, or by any other means – without the specific consent of the person depicted to that distribution. The original consent to recording provides no defence to a charge of non-consensual distribution.
In practical terms, this means that sharing an intimate image of a former partner with a friend, sending it in a private message, forwarding it in a group chat, or uploading it to any platform, regardless of the privacy settings, can constitute the offence. There is no minimum scale of distribution. Sending an image to one person is sufficient.
The threat offence
The threat offence under section 91S is especially important because it captures conduct before any distribution actually occurs. Where a person threatens to record or distribute intimate images of another person, that threat itself constitutes a criminal offence. The threat may be made verbally, in a text message, through a social media direct message, or by any other means. Evidence of the threat in digital communications is typically straightforward for investigators to obtain.
Threat charges arise most commonly in the context of relationship breakdown, where a person threatens to distribute intimate images unless the former partner acts in a certain way – resuming contact, making payments, or taking other steps. Where that threat is accompanied by a demand for benefit, the conduct may also constitute blackmail or extortion under the Crimes Act, carrying considerably higher maximum penalties.
How police investigate these cases
Image-based abuse investigations typically begin with a complaint from the person whose images were distributed or who has been threatened. Investigators obtain a detailed account of what material exists, on what platforms it was distributed, through what accounts, and in what circumstances. They then pursue production orders directed at the relevant platforms – social media companies, messaging services, image hosting sites, and email providers – requiring production of upload records, account information, message histories, and any associated metadata.
Platform metadata is central to these cases. Upload records identify the device used, the account from which material was sent or posted, the timing of uploads, and in many cases location data at the time of the upload. Even where an account was created anonymously or pseudonymously, technical investigation frequently establishes a link to a real person through associated email addresses, payment records, linked accounts on other platforms, or device identifiers. Material that has been deleted from platforms is often recoverable from the platform’s own archive or from devices that were used to access it.
Device extraction from the accused’s phone, tablet, or computer is sought in most investigations. Forensic examination recovers deleted files, browsing history, app usage logs, and communication histories. Where the accused’s device contains the intimate images, access logs showing when they were viewed, and messages discussing their distribution, the prosecution case will typically be very strong.
The domestic violence connection
Image-based abuse charges arise most frequently in the context of current or former intimate relationships. They are routinely accompanied by apprehended domestic violence order applications, stalking and intimidation charges, and in cases involving a sustained pattern of controlling behaviour, coercive control charges under section 54D of the Crimes Act. Legal Aid NSW and the NSW Government’s domestic violence framework both identify non-consensual distribution of intimate images as a recognised form of technology-facilitated domestic abuse. NSW Police are increasingly alert to the connection between image-based abuse and the broader pattern of post-separation coercive conduct, and the charging approach reflects that awareness.
Where image-based abuse charges arise alongside domestic violence allegations, the bail conditions imposed will typically reflect both the DV context and the digital nature of the alleged offending. Conditions prohibiting contact with the complainant and conditions restricting internet access or social media use are both common. Where an ADVO is in place, any contact that constitutes a further distribution attempt will simultaneously be a breach of the order.
Commonwealth law also applies
Where intimate images are distributed using a carriage service – the internet, a mobile network, a messaging application – Commonwealth offences under the Online Safety Act 2021 (Cth) and the Criminal Code Act 1995 (Cth) may also apply alongside NSW charges. The eSafety Commissioner has civil powers to require platforms to remove non-consensual intimate imagery and can issue compliance notices to individuals. Criminal provisions under the Online Safety Act carry penalties up to five years imprisonment for serious online distribution offences. In serious matters police may charge under both NSW and Commonwealth law, and the cumulative exposure is considerably higher than either framework alone would suggest.
What to do if you have been charged
At National Criminal Lawyers, we defend image-based abuse charges under both the NSW Crimes Act framework and the Commonwealth Online Safety Act. These cases involve detailed digital evidence, and early engagement with an experienced criminal lawyer allows a careful assessment of the prosecution’s evidence and the available defences. Do not attempt to manage these matters without specialist advice – the evidence builds quickly once an investigation begins and the options available to a defendant are best assessed at the earliest stage. Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
