The Law Handbook 2024

Chapter 7.5: The internet and the law 743 While criminal and civil laws exist in some states and territories to provide compensation to victims of image-based abuse, there is no national consistency. Sexting ‘Sexting’ is: the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices (Law Reform Committee 2013, Inquiry into Sexting , Victorian Parliament, Parliamentary Paper No. 230, p. ix). The Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 (Vic) (which passed on 15 October 2014) amended the Summary Offences Act 1966 (Vic) (‘ SO Act ’) and the Crimes Act 1958 (Vic) (‘ Crimes Act (Vic) ’). The Bill created the offences of distributing an intimate image (s 41DA) and threatening to distribute an intimate image (s 41DB) under the SO Act. There is a defence to the offence of distributing an intimate image where the image is of a person 18 years or older and that person has expressly or impliedly consented to its distribution. Under the Crimes Act 1958 (Vic), it is an offence to produce, distribute, possess or access ‘child abuse material’. This includes material where a person who is or appears to be a child is engaged in (or apparently engaged in) a sexual pose or activity (see ss 51A– 51H). This definition covers peer-to-peer sexting by minors. However, there is a defence under section 51N for minors where the material is an image that does not depict an imprisonable offence (or that the minor reasonably believes does not depict a imprisonable offence) and where the youngest child in the image is no more than two years younger than the minor. There is also a defence for adults aged 18 or 19 years old under section 51P. This defence applies where: • the person is no more than two years older than the person in the image (who must be 16 or 17 years old and not in the care of the other person); and • the image does not depict an imprisonable offence; and • the person has dealt with the image with the consent of the person in the image; and • the person does not distribute the image to anyone other than the person in the image. Social networking sites and personal information Social networking sites, such as Facebook and LinkedIn, enable members to use a personal profile to interact with other people online. Privacy policies Most social networking sites have a privacy policy that governs how they store and control access to the information that users upload to their profiles. Under many of these policies, information can be viewed by other users of the particular social networking site, or by anyone who has access to the internet. Privacy and safety Social networking sites can give rise to privacy and safety concerns, as it can be difficult to confirm the identity of other social networking site members. A common problem on social networking sites is the establishment of false profiles, designed to mislead users as to the identity of the person posting the information. An online reporting facility exists on Facebook and X (formerly known as Twitter) where requests can be made to remove or modify the false page or user. Publication laws apply online All publication laws (including defamation, copyright, vilification and contempt) apply to social networking sites. Other publication restrictions apply (e.g. not identifying victims of sexual offences, or discussing Children’s Court and Family Court matters). Employees If you use a profile that identifies you as an employee or associate of a particular organisation, you are usually subject to the social media and professional conduct guidelines of that organisation. Internet dumping Internet dumping (also known as ‘modem jacking’) is the practice of switching a user from their current ISP to a premium-rate telephone number without their knowledge or consent. Internet dumping can occur when certain websites are accessed. Internet dumping is likely to breach the Competition and Consumer Act 2010 (Cth), and various state Fair