Pornography and Sexual Photos and Films

Disclaimer: The material in this factsheet is a general guide only. It is not legal advice. For legal advice about your own particular situation we encourage you to call the Free Legal Helpline on 1300 366 424. The legal information was correct at the time of publishing (April 2016), however may change without notice.

 

Acknowledgments:

The Legal Services Commission gratefully acknowledges the assistance of the National Children’s and Youth Legal Centre in allowing the Legal Services Commission of South Australia to use and adapt existing content.
 

In this section you will find information on:

  • Young people viewing pornography
  • Sexual photos and films that have young people in them
  • Pornography classifications
     

Young people viewing pornography

Is it illegal for me to view porn on the internet if I am under the age of 18?

In most circumstances, it is not illegal for someone who is under 18 to view porn on the internet if the person or people that are in the porn are adults. While the Australian Communications and Media Authority can request that videos that show people having sex are removed, it is generally not against the law to look at these films for personal use if the person or people in the film or image are adults.

It is not an offence for someone to sell pornography to adults. However, it is illegal to show or sell indecent or offensive material.

Indecent and offensive material includes material (such as films and images) that is immoral or obscene; or includes:

  • violence or cruelty; or
  • the manufacture, supply, acquisition or use of drugs or instruments of violence or cruelty; or
  • instructions in crime; or
  • revolting or abhorrent things; and

    would cause serious and general offence amongst reasonable adult members of the community.

It is also an offence to make or take any steps to make indecent or offensive material for the purpose of:

  • selling it,
  • showing it  in a public place or having it visible from a public place
  • showing the material to someone to offend them, or
  • showing or giving it to someone who is under 18 years old.
     

Is it illegal for me to show someone porn if they are under the age of 18?

It is illegal to send or show porn films to other people who are under 18, even if you’re showing them in a private place like your house.

It is also illegal to show someone under 18 any indecent or offensive material (see above for more information).
 

Sexual photos and films that have young people in them

Do sexual photos and films of young people count as child pornography?

Under South Australian law, child pornography(child exploitation material) includes anything (such as a photo or a film) that describes or shows someone who is under the age of 17 (or someone who appears to be under 17):

  • engaged in some kind of sexual activity; or
  • contains an image of the body parts of a child or young person; or
  • appears to involve a child or young person in some way; and

    the image is intended to be pornographic (which means it’s meant to be sexy or excite some kind of sexual arousal).

Even if the young person says that they agree to be in the image or film, it can still be child pornography and illegal.

It is against the law to:

  • make, or attempt to make child pornography;
  • disseminate or attempt to disseminate child pornography;
  • possess or attempt to possess child pornography.

Under Federal laws child pornography includes images of anyone who is, or appears to be, under 18 years and who is:

  • engaged in sexual activity, in a sexual pose, is in the presence of someone else who is engaging in a sexual pose or activity; or
  • any material that describes or shows the sexual organs, anal region or female breasts; and

    the material would be offensive to a reasonable person.

It’s possible to live in South Australia but be charged with a federal criminal offence.

Under federal law, it is illegal to use your phone or the internet to access, send, publish, post or ask for material that is considered child pornography. So if you engage in sexting, and the person in the photo (you or another person) is under 18 (or even looks under 18), you will be committing an offence.

If the police think that you have committed a child pornography offence it is very important to get legal advice. Call the Free Legal Help Line on 1300 366 424.

What if someone has sent me something that would be considered child pornography but I didn’t ask for it?

If you have been charged for possessing or trying to access material that is considered child pornography, there is a possible defence if you did not ask for the material to be sent to you and as soon as you received the material and realised that it was pornographic, you took reasonable steps to get rid of it (for example, deleted it if it was sent to your phone).

It is very important to get legal advice. Call the Free Legal Help Line on 1300 366 424.
 

What about other types of images?

It is against the law to make or send out an invasive image of someone. An invasive image is an image in which the person is in a place other than a public place and is engaged in a private act or is in a state of undress such that their bare genital or anal region can be seen. For females the definition also includes where bare breasts are visible.

It is also an offence to threaten to distribute an invasive image of someone if you know that the person in the image doesn't want you to do that.

Pornography classifications

The Australian Classification Board (ACB) is a government agency that classifies films, computer games, publications and internet content into categories (like MA15+, X18+, RC). 'Porn' usually refers to videos that show people having sex.

Videos that show consenting adults having sex (without offensive violence, intense fetishes, or abuse) are usually classed as X18+. Videos that show violent, cruel or otherwise offensive adult sex, sex with minors or sex with animals are refused classification (RC).

Both X18+ and RC videos are technically prohibited. The Australian Communications and Media Authority (ACMA) must take action about prohibited content if it is reported to them, to ensure, among other things, that it is not hosted or made available in Australia.

While classified R18+, X18 or RC videos are not allowed to be viewed in public by people under 18, it is generally not against the law for a person to view videos online, if they are by themselves in private. The most important exception to this rule is child pornography, which is against the law and has very serious penalties (see information above).
 

 

See further the Law Handbook on Pornography.
 


 

 




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