Computer Offences and Cybercrime Lawyers NSW

The news of an individual facing 20 years in prison after being convicted of 27 charges, including identity theft and extortion in San Diego for running a “revenge porn” website has sparked online discussion about the law surrounding posting indecent photographs on the internet without the consent of the person photographed.

Notwithstanding the prominence of the internet in modern society there are limited cases to illustrate how the Court will deal with such matters in NSW.

One of the earliest decisions was a New Zealand case from the Wellington District Court in New Zealand on 12 November 2010. In the matter, the accused had posted a nude photograph of his ex-girlfriend on Facebook. Not only did he log into her account and upload the image, which showed her to be naked in front of a mirror, he then unblocked her privacy settings and changed her password. The image remained online for a period of 12 hours before the police and Facebook authorities shut down the account. The accused received a full time sentence of imprisonment for a period of 4 months. The presiding judge indicated:

“technology should not be used in this way and as such the appropriate starting point should be prison”.

A decision from 2011 was the first reported decision in NSW dealing with the issue. The accused entered a plea of guilty to an offence of publishing an indecent article, an offence prosecuted under section 578C of the Crimes Act 1900, which carries a maximum penalty of imprisonment for a period of 12 months together with a fine of up to $11,000. The Court stated:

“The penalty is indicative of the seriousness the community views this type of offence”.

The facts were that the accused and the complainant had known each other since 2008. During that time they had been in a relationship, which has on occasions been intimate. They had also lived together, but in July 2011 the complainant moved from the premises she shared with the accused. On 15 October 2011, the accused, to get back at the complainant, decided to post six images of her on his Facebook page. The images posted show the complainant while nude in certain positions and clearly showing her breasts and genitalia.

The sentencing magistrate in her judgment stated:

“In relation to this matter I have regard to the purposes of sentencing, and in particular the need to prevent crime by deterring both the offender and the community generally from committing similar crimes. This is a particularly relevant consideration in a matter such as this where new age technology through Facebook gives instant access to the world. Facebook as a social networking site has limited boundaries. Incalculable damage can be done to a person’s reputation by the irresponsible posting of information through that medium. With its popularity and potential for real harm, there is a genuine need to ensure the use of this medium to commit offences of this type is deterred”.

The accused was sentenced to 6 months imprisonment. Such imprisonment was Ordered in the first instance to be serve by way of home detention. The decision was appealed. On 15 February 2012, the District Court confirmed the defendant’s sentence of imprisonment, but quashed the Home Detention Order and ordered that the sentence be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.

The Courts have shown that publishing indecent photographs without the consent of the individual photographed could result in the Court imposing custodial sentences.


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