We all like to sext, but what can you do if things turn sour? What remedies do you have if a jilted lover sends naked photos of you to their friends, posts them online, or uses them to blackmail you?
The criminal law doesn’t give you much. Sexting is a new crime and the law hasn’t caught up yet. It is a offence under commonwealth law to menace, harass or offend someone—maximum three years in prison. The law is not about sexting per se, but it’s been used in a few sext-related cases. Under NSW law, it is illegal to publish an ‘indecent article’, or to photograph someone naked for the purpose of obtaining or enabling another person to gain sexual gratification, without their consent.
Stupidly, there is a six-month limit on commencing proceedings and the clock starts from the date the material was generated. If you discover the photos more than six months after they were taken, there isn’t much you can do. Another shortfall is that charges can only be brought against the person who originally took, or distributed, the photos. There are no legal consequences for sharing them. Meanwhile in Victoria, sharing photos (or even just threatening to)—whether or not you actually took them—is illegal.
What if you want to sue? You can’t sue for invasion of privacy. But you may be able to take someone to court for breach of confidence. It’s rare but earlier this year, an ex-lover and general fuckwit shared explicit photos and videos of his girlfriend with nearly 300 of his Facebook friends. She was awarded nearly $50,000 in damages.