A person will only be guilty of the offence if the reason, or one of the reasons, for disclosing the photograph is to cause distress to the person depicted in the photograph or film.

Anyone who passes on, without consent of the depicted individual, any such photograph or film, such as by, for example, re-tweeting would be committing an offence if the purpose, or one of the purposes, was to cause distress to that individual.

Anyone who passes the message on simply because he or she thought it was funny, and without any intent to cause distress, would not be committing the offence.

The offence applies to any kind of disclosure of private sexual photographs or films such as, for example:

• uploading images on the internet,
• sharing by text or e-mail, or
• showing someone a physical image.

The offence applies equally online and offline and to images which are shared by electronic means or in a more traditional way.

The photograph or film has to be private and sexual and could include:

• an image depicting an individual’s exposed genitals,
• a picture of someone who engaged in sexual behaviour or posing in a sexually provocative way, if what is shown is not of a kind ordinarily seen in public.

An image of exposed genitals or pubic area would automatically be regarded as sexual because this part of the body is considered to be so intimate.

Photographs or films depicting other types of nakedness or areas of the body would be caught by the offence if they meet the definition of private and sexual.