The non-consensual distribution of intimate images including videos can occur in various situations involving adults and youth, including relationship breakdown and cyberbullying. Young people are increasingly consensually exchanging intimate images, which may later become fodder for humiliating cyberbullying attacks, with these images spreading quickly and often uncontrollably.
Often these images are originally intended for an individual or only a small number of other people but are disseminated more widely than the originator consented to or anticipated. The effect of this distribution is a violation of the depicted person's privacy in relation to images, the distribution of which is likely to be embarrassing, humiliating, harassing, and degrading or to otherwise harm that person.
There is limited data on the extent and the nature of this activity. Much of what is known about this behaviour is anecdotal and comes from the United States. Footnote Only the state of New Jersey in the United States has a criminal offence Footnote 31 that addresses this conduct specifically.
That offence prohibits the distribution of photos or videos of nude persons or persons engaging in sexual conduct, unless the person depicted in the photo consents to the distribution. Several Australian states have enacted various laws which deal with elements of the non-consensual distribution of intimate images, though many of these offences are extensions of the criminal harassment provisions or voyeurism-type offences.
New Zealand's Law Reform Commission recently recommended amendments to the covert filming provisions of the Crimes Act, Footnote 32 to criminalize the publication of an intimate image by the person who made the image without consent of the person depicted. The Government has since rejected this recommendation, on the basis that this behaviour will be covered by other offences, what is not covered should be dealt with under civil remedies, and the proposal was an "uncomfortable fit" with the other covert filming offences which require a lack of knowledge of the filming itself.
