Introduction

In today’s digital world, taking and sharing photographs or videos has become second nature. Smartphones, social media platforms and instant messaging apps allow images and videos to be uploaded within seconds and viewed by thousands—or even millions—of people around the world.

While many people assume that posting a photo or video is harmless, there are circumstances where sharing someone’s image without their consent can lead to serious legal consequences. Depending on the nature of the material and the circumstances in which it was obtained or shared, the conduct may amount to a criminal offence, expose the person responsible to civil proceedings, or both.

Australia has strengthened its laws in recent years to protect individuals from image-based abuse, online harassment, stalking and privacy breaches. Police now investigate many offences that begin with the simple act of posting a photograph or video online.

This article explains when posting images without consent becomes unlawful, the criminal offences that may apply, and what you should do if you are accused or become the victim of image-based abuse.

Is It Illegal to Post Someone’s Photo Without Permission?

The short answer is not always.

Australian law does not generally prohibit taking or posting photographs of people in public places. However, whether it is lawful depends on numerous factors, including:

• Where the image was taken
• Whether the person had a reasonable expectation of privacy
• The age of the person photographed
• The purpose of publishing the image
• Whether the image is intimate or sexual
• Whether the publication forms part of harassment or stalking
• Whether the image is altered or used to deceive others.

Simply because an image was lawfully taken does not necessarily mean it can be lawfully published.

When Can Posting Images Become a Criminal Offence?

Posting photographs or videos without consent may become criminal when it involves:

• Intimate images
• Sexual content
• Children
• Harassment
• Stalking
• Threats
• Blackmail
• Voyeurism
• Image-based abuse
• Using telecommunications to menace or harass
• Identity fraud.

Each situation depends on its own facts and applicable legislation.

Image-Based Abuse

One of the most serious offences involves sharing intimate images without consent.

Often referred to as “revenge pornography,” image-based abuse includes:

• Posting intimate photographs online
• Sending intimate videos to others
• Sharing private recordings in group chats
• Uploading sexual material to websites
• Forwarding intimate images received privately.

Consent to take an intimate image does not automatically mean consent has been given to publish it.

These offences carry significant penalties throughout Australia.

Threatening to Share Intimate Images

Even if no image is ever published, threatening to distribute intimate images can itself be a criminal offence.

Examples include threatening to post images unless someone:

• Pays money
• Returns to a relationship
• Withdraws police complaints
• Performs sexual acts
• Stops court proceedings.

Such conduct may amount to:

• Image-based abuse
• Blackmail
• Intimidation
• Domestic violence offences.

Recording Without Consent

Recording someone without their knowledge may also be unlawful.

Examples include:

• Hidden cameras
• Recording in bathrooms
• Recording in change rooms
• Secret recordings in bedrooms
• Covert filming beneath clothing.

Many states have specific offences dealing with voyeurism and covert recording.

Posting Images of Children

Special legal protections apply to children.

Parents should be cautious when sharing images of children online, particularly where the child:

• Is identifiable
• Is wearing limited clothing
• Is in a vulnerable situation
• Is at school
• Can be located through identifying information.

Where images are sexualised or exploitative, extremely serious Commonwealth child exploitation laws may apply.

Cyberbullying Through Images

Photographs and videos are increasingly used as tools of cyberbullying.

Examples include:

• Embarrassing videos
• Edited photographs
• Fake images
• Public humiliation
• Viral sharing
• Online ridicule.

Depending on the circumstances, these actions may constitute criminal harassment, stalking or intimidation.

Deepfakes and Artificial Intelligence

Artificial intelligence has created new legal challenges.

Deepfake technology can generate realistic images or videos that falsely depict someone engaging in conduct they never performed.

Examples include:

• Fake sexual images
• Fake criminal conduct
• Fake workplace misconduct
• Altered videos damaging reputations.

Where deepfakes are used to harass, extort or exploit another person, criminal offences may arise in addition to civil claims.

Stalking and Intimidation

Repeatedly posting images of another person may form part of a stalking campaign.

Examples include:

• Constantly publishing their whereabouts
• Following them with a camera
• Posting videos to intimidate
• Sharing private family photographs
• Tagging their employer repeatedly.

In New South Wales, stalking or intimidation can result in criminal charges and may also support an Apprehended Violence Order (AVO).

Defamation

Not every wrongful publication is criminal.

If a person publishes photographs or videos that damage another person’s reputation, the victim may instead have rights under Australia’s defamation laws.

Examples include:

• False captions
• Edited images
• Misleading videos
• Fabricated allegations accompanying photographs.

Defamation proceedings are generally civil matters rather than criminal prosecutions.

Using a Carriage Service to Menace or Harass

Publishing images through social media, messaging platforms or email may constitute using a carriage service to menace, harass or cause offence under Commonwealth legislation.

Examples include:

• Sending repeated offensive images
• Publishing threatening videos
• Coordinated online abuse
• Harassing someone through repeated image sharing.

These offences can carry significant penalties.

Police Investigations

When allegations involve unlawful publication of photographs or videos, police may investigate using digital evidence.

Evidence may include:

• Mobile phones
• Cloud storage
• Social media accounts
• Internet history
• Metadata
• IP addresses
• Screenshots
• Witness statements
• Computer forensic analysis.

Deleting material after an investigation begins rarely removes all evidence.

Possible Penalties

Penalties depend upon the offence committed.

Possible outcomes include:

• Criminal convictions
• Fines
• Community Correction Orders
• Intensive Correction Orders
• Good Behaviour Orders
• Apprehended Violence Orders
• Imprisonment.

More serious offences involving intimate images or child exploitation attract substantially higher penalties.

Possible Defences

Every matter depends upon its individual circumstances.

Potential legal issues may include:

• Identity disputes
• Lack of intent
• Consent
• Honest and reasonable mistake
• Insufficient evidence
• Lawful authority.

A criminal lawyer can assess whether the prosecution is capable of proving every element of the alleged offence.

What Should You Do if Police Contact You?

If police contact you regarding images or videos posted online:

• Remain calm.
• Do not delete evidence.
• Do not contact the complainant.
• Avoid discussing the matter on social media.
• Seek legal advice before participating in a police interview.
• Exercise your right to obtain legal representation.

Early legal advice often has a significant impact on the outcome of an investigation.

What Should Victims Do?

If someone has posted your image without consent:

• Preserve screenshots.
• Save links.
• Record usernames.
• Report the content to the platform.
• Report criminal conduct to police.
• Seek legal advice regarding removal options and compensation.

The sooner action is taken, the greater the chance of limiting further distribution.

Why Early Legal Advice Matters

Online content spreads rapidly and can be difficult to remove completely.

Whether you are accused of unlawfully sharing images or are the victim of image-based abuse, obtaining legal advice early can help:

• Protect your legal rights
• Preserve evidence
• Prevent further publication
• Navigate police investigations
• Respond appropriately to court proceedings.

Prompt legal assistance may significantly influence the outcome of both criminal and civil proceedings.

How Aquarius Lawyers Can Help

Aquarius Lawyers represents individuals throughout Australia in matters involving online offences, image-based abuse and criminal investigations.

Our experienced criminal law team can assist with:

• Police interviews
• Image-based abuse offences
• Stalking and intimidation allegations
• Commonwealth cybercrime investigations
• Social media-related offences
• AVO proceedings
• Criminal court representation
• Appeals.

If you have been accused of posting photographs or videos unlawfully, or your images have been shared without your consent, contact Aquarius Lawyers for confidential legal advice tailored to your circumstances.