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Getting an intimate image removed from social media

Information about what a person can do if someone posts an intimate photo of them on the internet or social media site without their consent.

The Commonwealth eSafety Commissioner is empowered to help deal with the harm of online abuse

If an intimate image is posted online without consent, the person shown in the image can try to get the image removed by asking the media service to take it down. Some sites make it easy to report this. If this does not work, the eSafety Commissioner may be able to help.

Under Commonwealth and Victorian law, a person must not post (or threaten to post) an intimate image of another person on social media, the internet, or a designated 'on demand' program service without the consent of the person depicted.

See s. 16—Online Safety Act 2021 (Cth)(opens in a new window) and sections 53S and 53T Crimes Act (Vic)

What is an intimate image?

For the purposes of the Commonwealth Online Safety Act 2021, an intimate image is a still or moving image that shows (or appears to show):

  • a person's genital or anal area, or breast(s) of a woman or a person who identifies as being a woman. This applies, whether or not the private areas are covered with underwear.
  • a person:
    • in a state of undress
    • using the toilet
    • bathing or showering
    • engaged in a private sexual act, or any other like activity
  • a person who is not wearing a particular item of cultural or religious attire that a person consistently wears in public.

This image must also be captured in circumstances where the ordinary reasonable person would reasonably expect to be afforded privacy.

The image could include photographs that have been modified, drawings, animations or other depictions of the person. So, for example this would cover an image where a person's head had been superimposed on a naked image.

It is up to the person who posted the image to prove that consent was given.

See ss. 15, 16 and 75—Online Safety Act 2021 (Cth).

For a person to consent to an intimate image of themselves being posted, the consent must be expressly and voluntarily given and well informed. The person must be aware of who that image would be shared with and why the image is being shared. There must be no coercion. So for example, if a person gave consent for their image to be shared with one other person, this would not be considered 'consent' for the purpose of posting the image on a social media site.

A person under 18 years old is not able to give consent. A person who has a mental or physical condition, which impairs their capacity to give consent is not able to give consent either.

See s. 21—Online Safety Act 2021 (Cth)(opens in a new window).

Some posts are exempt

An intimate image is exempt if it was necessary for:

  • assistance with law enforcement
  • court or tribunal proceedings
  • a genuine medical or scientific reason.

It is also exempt if an ordinary reasonable person would consider the post acceptable, all circumstances considered.

See s. 86—Online Safety Act 2021 (Cth)(opens in a new window)

Complain to the eSafety Commissioner

If a person believes that an intimate image has been posted of them they can complain to the commissioner, even if they do not know who was responsible for posting the image. Another person can make the complaint on behalf of the person, whose image has been posted if that person gives permission for the complaint to be made.

A parent or guardian can also make a complaint about an intimate image where the person captured:

  • is under 16 years old, or
  • has a physical or mental condition that makes them incapable of managing their own affairs.

See s. 32—Online Safety Act 2021 (Cth)(opens in a new window).

A person, or their representative may give an objection notice to the commissioner if an intimate image has been posted by an end user on a social media site, a relevant electronic service or designated internet service. They can send this notice even if the person depicted in the image had formerly given consent to the posting, but later had regrets about this.

See s. 33—Online Safety Act 2021 (Cth)(opens in a new window).

Investigation by the commissioner

The commissioner has broad powers to investigate a complaint or an objection notice made about the posting of an intimate image. They may require a person to attend before the commissioner and answer questions or produce documents.

See ss. 31, 34, 37—Online Safety Act 2021 (Cth)(opens in a new window)

Removal notices

The commissioner has discretion whether to issue a removal notice in relation to an intimate image.

They may issue this removal notice to the person who posted the image or to the social media, electronic or internet service that provides the service, or to a hosting service. If a removal notice is issued, the image must be removed within 48 hours, or such other time as the commissioner orders.

See ss. 77, 78, 79, 80— Online Safety Act 2021 (Cth)(opens in a new window).

Possible penalties

The eSafety Commissioner has many options if they find that a person has posted an intimate image without the consent of the person depicted. The commissioner may:

  • issue a formal warning
  • issue an infringement notice
  • apply to court for a civil penalty order of up to 500 penalty units (or 2500 penalty units for a body corporate)
  • issue a removal notice (requiring the person to remove the image).

If the person posted an intimate image of a person without their customary religious or cultural clothing, that person will not be fined if they did not know that the person depicted consistently wears that clothing.

Anyone who fails to comply with a removal notice may be fined up to 500 penalty units. Alternatively, they may be issued with a formal warning.

Where an order is to be made for a fine, the person who posted the image bears the burden of proving:

  • that the person consented to their image being posted
  • that they did not know that the person customarily wore the clothing.

See s. 162—Online Safety Act 2021 (Cth)(opens in a new window)

Infringements

If the matter is dealt with by issue of an infringement notice the penalty is:

  • 12 penalty units for an individual
  • 60 penalty units for a body corporate.

See s. 162—Enhancing Online Safety Act 2015 (Cth)(opens in a new window) and s. 104(3)—Regulatory Powers (Standard Provisions) Act 2014 (Cth)(opens in a new window).

Review of the Commissioner's decision

The Administrative Appeals Tribunal can review some of the Commissioners decisions.

See s. 220—Online Safety Act 2021 (Cth)(opens in a new window).

More information

Legislation

Online Safety Act 2021 (Cth)

  • s. 15—defines an intimate image
  • s. 21—defines consent
  • s. 32—complaints to the eSafety Commissioner about intimate images
  • s. 34—enables the commissioner to investigate as they see fit
  • s. 35—commissioner's response to an objection notice
  • s. 75—posting an intimate image
  • s. 76—formal warning
  • s. 77—removal notices to service provider
  • s. 78—removal notice to person who posted the intimate image
  • s. 79—removal notice to a hosting service
  • s. 80—compliance with the removal notice
  • s. 81—formal warning
  • s. 162—civil penalty provisions
  • s.163—infringement notices
  • s. 220—review of the commissioner decisions

See Online Safety Act 2021 (Cth)(opens in a new window).

Broadcasting Services Act 1992 (Cth)

  • Part 13—information gathering by the Australian Communications and Media Authority (ACMA) and the eSafety Commissioner
    • s. 169A—investigation by the commissioner
    • s. 173(2)—empowers to commissioner to give written notice requiring person to produce documents or answer questions or to attend before the commissioner

See Broadcasting Services Act 1992 (Cth)(opens in a new window).

Regulatory Powers (Standard Provisions) Act 2014 (Cth)

  • Part 4—civil penalty provisions
    • s. 82(5)—maximum penalty for a body corporate
    • s. 104(3)—amount of an infringement penalty

See Regulatory Powers (Standard Provisions) Act 2014 (Cth)(opens in a new window).

Reference

ESafety Commissioner

The commissioner is responsible for promoting online safety for all Australians. The commissioner provides a complaints service for young people who experience serious cyberbullying, identifying and removing illegal online content and tackling the problem of image based abuse.

See Office of the eSafety Commissioner—Report online harm(opens in a new window).

Updated