Sexting

Sharing intimate images is increasingly a part of young people’s self-expression and sexual agency. However, there are criminal laws that may apply depending on the circumstances and also the age of the people involved. The only way to be completely legally safe when texting is for both people to be over 18 and fully consenting. On this page, we explain some of the laws that may apply to young people exchanging sexual images.

Remember that once an image or video is shared, it is very hard to control how is it used after that.

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What is sexting?

Sexting refers to using a mobile phone or the internet to take, ask for, receive, send or share intimate photos or video, including where someone is naked, partly naked, posing sexually or doing a sexual act. 

Sexting may be a crime if it involves people under 18, even if they consented (that is, agreed to sending and receiving the sexts). This is because the sexts may be considered to be child abuse material (sometimes called child pornography). 

If the people involved in the sexting haven’t consented, or the sexts are threatening or harassing, then it’s more serious and further criminal laws may apply. You can check out our pages on image-based abuse for more information on non-consensual sexting. For free and confidential legal advice about this topic, please contact us here.

What is consent?

If a person gives consent, the person must have freely and voluntarily agreed – so their consent won’t count if they are drunk or you have threatened them. Someone who consents to sexting with you does not mean that they consent to those sexts being shared with anyone else, or to any other sexual act. Remember – people are allowed to change their minds about sexting at any time! 

What the law says

If sexting involves people under 18, it can be a crime even if everyone involved has consented. This is because it might be considered child abuse material (sometimes known as ‘child pornography’). 

Please note the law in this area is complicated and this is just a summary. If you have been sexting and are worried about anything you have sent or received then we recommend you get legal advice straight away.

What is child abuse material?

The law makes it illegal to create, share or keep child abuse material. This includes images, texts or videos of children who are:

  • posing in a sexual way;
  • involved in a sexual act;
  • with someone else who is posing in a sexual way or involved in a sexual act; or
  • showing their genital area, anal area or their breasts for a sexual purpose.

The images can be photos or videos, but also other images like drawings and even cartoons.  It also includes pictures that have been photoshopped or digitally altered to make the person look young or naked.

The image has to be ‘offensive’ to the average person. This means innocent family photos of naked kids having a bath probably wouldn’t be considered as child abuse material material, but a naked teenager posing in a bed could be in some circumstances. 

There are two sets of laws that can apply to sexting: NSW law and the national law:

  1. Under NSW law, it is illegal to make, share, ask for or have material that could be considered child abuse material. A child is considered to be anyone under the age of 16, or someone that appears to be under 16 due to the circumstances (e.g. if they appear under 16 and are wearing a school uniform).
  2. Under Australian national law, it is illegal to make, share, ask for or have material that could be considered child abuse material. A child under the national law includes anyone under the age of 18, or someone that appears to be under 18 due to the circumstances

It’s also against the the law for someone 18 or over to use a phone or the internet to:

  • send ‘indecent’ pictures or text to someone under 16;
  • engage in sexual activity with someone under 16;
  • persuade someone under 16 to engage in sexual activity with them or with someone else.
Because both state and national laws apply in NSW, it is risky for a person under 18 to engage in sexting. If you’re concerned about a sext that you’ve sent or received, get free and confidential legal advice here.

NSW defences to child abuse material laws

Under NSW law, there are some defences that apply to children sexting. For example:

  • If you take a photo of yourself alone and you are under 18 – making or keeping this photo is not against the law
  • If you receive a sext from another person under 18 without asking for it, and the sext is immediately deleted – in this situation, you will not get into trouble
  • If you are under 18 and you have a photo or video of someone else who is under 16, and an average person would think it is OK for you to have it (taking into account things like their relationship with the person in the image, how explicit the picture is, and how it was made and shared)

Also, if you are under 18, the police have to get special approval before they can take you to court for a child abuse material offence. 

Sharing intimate images without consent

Under NSW law and Australian national law it is a crime to take, send, share or post a nude or sexual image of someone who hasn’t consented, no matter how old they are It is also against the law to threaten to do so. This is called image-based abuse. You can read more on our image based abuse page here.

What could happen if I break the law?

Every situation is different and it’s safer if you don’t ask for, send, share or keep nude or sexual images of someone under 18. If you are unsure, you can get free legal advice here. 

If you are found guilty of breaking the laws listed above, the consequences can be very serious. For example you could end up with a criminal record or even go to jail. The maximum jail terms for some child sex offences are very high (for example, 15 years for sending child abuse material by phone or the internet). 

In serious cases, you could also be placed on the NSW Child Protection Register if you are found guilty. This might make it difficult for you to work in jobs where you have contact with children.

It’s also worth noting that most websites, phone companies and social media services have rules that apply to sending, posting or sharing child abuse material or other offensive material. If you break these rules the material could be removed, your account may be suspended or closed, or you may even be reported to the police. 

What can I do if I’m worried about an image that’s been taken or a sext that’s been shared?

We recommend you:

  • delete any images you are uncomfortable with straight away, especially if the person in the picture has asked you to;
  • don’t send these images to anyone else or post them online; 
  • if someone is sending you sexts, and you don’t want to receive them, ask them to stop; 
  • never request, share or keep sexts involving people under 18; 
  • talk to a trusted adult or a counsellor; and 
  • get legal advice.

Talk to someone

If you are feeling down, anxious or stressed about the situation, we encourage you to talk to a parent or another trusted adult. Even if you are worried about getting into trouble, it might be better to get help from someone so you can sort things out. 

If you would rather talk to a trained counsellor, you can call one of the services ​listed below ​for free and private counselling support. 

If someone won’t stop sexting you, won’t remove or delete images after you’ve asked, or the sexts are threatening or harassing, we recommend that you get legal advice. If you are in immediate danger, please call the police on 000.

Get legal advice

If you are worried about a nude or sexual image you or someone else has taken, or a sext that’s been shared, we recommend you get legal advice. A lawyer can help you work out what you should do, including how to get images removed or deleted if they have been shared or posted online.  

For free legal advice, you can ​contact us or one of these services:

Counselling and support services 

If you would like to talk to a trained counsellor, the​ following services offer free and private counselling support.

 

  • Kids Helpline 1800 551 800 (available 24/7, for young people between 5 and 25)
  • eHeadspace 1800 650 890 (available 9am to 1am, everyday, for young people between 12 and 25) 
  • Lifeline 13 11 14 (available 24/7, for all ages)
  • QLife1800 184 527 (available 3pm to midnight, everyday, for all ages) 
  • 1800RESPECT 1800 737 732 (available 24/7, for all ages) 
  • Mensline Australia 1300 78 99 78 (available 24/7, for men of all ages)

 

 

 

 

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