Humiliating or degrading filming
26B Humiliating or degrading filming
A person who engages in humiliating or degrading filming is guilty of an offence.
Maximum penalty: Imprisonment for 1 year.
A person who distributes an image obtained by humiliating or degrading filming knowing or having reason to believe that the victim—
does not consent to that particular distribution of the image; or
does not consent to that particular distribution of the image and does not consent to distribution of the image generally, is guilty of an offence.
Maximum penalty: Imprisonment for 1 year.
A person who—
takes
part in a humiliating or degrading act; and
in relation to that humiliating or degrading act, engages in conduct constituting an offence against subsection (1) or subsection (2), is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
It is a defence to—
a charge of an offence against subsection (1);
or
a charge of an offence against subsection (3) where the defendant is alleged to have engaged in conduct constituting an offence against subsection (1), to prove 1 or more of the following:
the defendant did not knowingly film the images the subject of the offence;
Example—
The filming took place accidentally or the filming took place in circumstances where the defendant did not know what images were being filmed.
the defendant reasonably believed that the victim consented to the filming the subject of the offence;
the conduct constituting the offence was for a legitimate public purpose.
It is a defence to—
a charge of an offence against subsection (2);
or
a charge of an offence against subsection (3) where the defendant is alleged to have engaged in conduct constituting an offence against subsection (2), to prove 1 or more of the following:
the defendant's distribution of the image was neither intentional nor reckless;
the conduct constituting the offence was for a legitimate public purpose.
For the purposes of this section, conduct will only be taken to be for a
legitimate public purpose if the conduct was in the public interest having regard to the following:
whether the conduct was for the purpose of educating or informing the public;
whether the conduct was for a purpose connected to law enforcement or public safety;
whether the conduct was for a medical, legal or scientific purpose;
any other factor the court determining the charge considers relevant.
If, in any proceedings for an offence against this section, the defendant establishes that the conduct allegedly constituting the offence was engaged in by or on behalf of a media organisation, the conduct will, for the purposes of this section, be taken to have been engaged in for a legitimate public purpose unless the court determining the charge finds that, having regard to the matters set out in subsection (6), the conduct was not for a legitimate public purpose.
For the purposes of this section, a person takes
part in a humiliating or degrading act if he or she—
subjects a victim to, or compels a victim to engage in, a humiliating or degrading act (where the victim does not consent to being subjected to, or engaging in, the act); or
encourages, supports or assists another person to engage in conduct of a kind referred to in paragraph (a) in relation to a victim.
In this section—
broadcasting includes datacasting;
media organisation means—
an organisation that engages in broadcasting pursuant to a licence under the Broadcasting
Services Act 1992 of the Commonwealth or that is otherwise authorised under a law of the Commonwealth to engage in broadcasting; or
an organisation that is a constituent body of the Australian Press
Council or is authorised under a law of the Commonwealth to engage in publishing;
publish means publish by newspaper, radio or television, or on the internet, or by other similar means of communication to the public;
victim means a person subjected to, or compelled to engage in, a humiliating or degrading act (where the person does not consent to being subjected to, or engaging in, the act).
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