Criminal Law

By Alexis Currier

30.03.22

The harsh reality of reality TV – the MAFS nude photo scandal

One of the most controversial Australian reality TV shows, Married at First Sight (“MAFS”), has again been in the headlines due to an incident that was aired on the show last week. For those not familiar with the show, strangers are matched together in ‘couples’ and married under the guise of a “social experiment”. As part of the ‘experiment’ the various couple also interact with one another at dinner parties and ‘commitment ceremonies’. With the help of clever producers, drama often ensues.

In summary, two of the contestants have been feuding during the ‘experiment’, which lead one of the ‘brides’, Olivia, to show a nude image of her fellow ‘bride’, Domenica, sourced from Domenica’s OnlyFans page to the other contestants.

Although it may on its face just seem like reality TV drama, the sharing of intimate images without consent has serious consequences in the real world.

Olivia Frazer and Domenica Calarco

 What is considered an intimate image? What is distributing an intimate image?

Section 72A of the Crimes Act 1900 (ACT) defines an intimate image as:

Intimate image, of a person –

  • Means a still of moving image, in any form –
    1. Of the person’s genital or anal region; or
    2. For a female or a transgender or intersex person who identifies as female – of the person’s breasts; or
  • Of the person engaged in a private act; or
  1. That depicts the person in a sexual manner or context; and
  • Includes an image, in any form, that has been altered to appear to show any of the things mentioned in paragraph (a).

 Section 72B of the Crimes Act 1900 (ACT) defines the meaning of “distribute” as:

Distribute –

  • Includes any of the following conduct, whether done in person, electronically, digitally or in any other way:
    1. Send, supply, show, exhibit, transmit or communicate to another person;
    2. Make available for viewing or access by another person, whether in person of by electronic, digital or any other means; but
  • Does not include conduct mentioned in paragraph (a) done by a person solely in the person’s capacity as an internet service provide, internet content host or a carriage service provider.

(2) A person is taken to have distributed an image whether or not another person views or accesses the image.

Based on the information aired on TV, on its face there is certainly a strong possibility that the image in question would fall under the definition of an intimate image and by Olivia showing the other contestants (even in person) it may be considered to have been distributed.

 What are the potential consequences for the distribution of an intimate image without consent?

In the ACT, the offence for sending an intimate image to another person is known as “non-consensual distribution of intimate images” and is found under section 72C of the Crimes Act 1900 (ACT).

If someone distributed an intimate image of another person and the offender knows they do not consent to the distribution or is reckless about whether they consent, the maximum penalty is 300 penalty units, imprisonment for 3 years or both. In the ACT, a penalty unit is the equivalent for an individual of $160[1], meaning the maximum fine is $48,000.00.

Online Safety Act 2021

In November 2021, the Australian Federal Government announced that they would be introducing further legislation to make Australia’s existing laws for online safety more expansive and stronger. The Online Safety Act 2021 also creates significant implications for online service providers, as it aims to make them more accountable for the online safety of the people who use their services.

The Online Safety Act 2021 provides a framework where people who believe that an intimate image of them has been distributed without their consent, they can make a complaint to the e-Safety Commissioner. The Commissioner may also launch an investigation to determine whether the incident constitutes image-based abuse.

It is a requirement that the ‘victim’ or their representative make the complaint before the e-Safety Commission can investigate a complaint.

What about taking an image from an OnlyFans account?

For those unfamiliar, OnlyFans is a subscription based social media platform where users can sell and/or purchase original content. Often used for NSFW content, users can post videos or images to their account which are protected by a paywall. For another user to gain access to the content, they must pay a monthly subscription fee.

The OnlyFans terms of service outline:

“You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the website except as follows: you may store the file that are automatically cached by your Web browser for display enhancement purposes; and you may print of download one copy of a reasonable number of pages of the website for your own personal, non-commercial use and not for further reproduction, publication or distribution.” [2]

During the show, Olivia stated that the picture was found on Google and taken from a Twitter account, rather than directly from Domenica’s OnlyFans account.  If it were the case that Olivia had taken the image from the account itself, she would likely be in breach of the terms of service and OnlyFans would be able to remove that account and ban the user from the platform.

The fall out so far

Following the sharing of the intimate image, there has been significant commentary online about Oliva’s actions, with a Change.org petition created seeking that action be taken against Olivia. To date, that petition has 123,932 signatures.

NSW Police have announced that they are launching an investigation into the matter:

“On Saturday, 19 March 2022, a complaint was made to officers at Inner West Police Area Command about the alleged distribution of an image without consent that occurred in late 2021…Inquiries are continuing and no further information is available at this stage.”[3]

Domenica has announced that she is seeking legal advice regarding the incident. At this stage, it is unclear whether she will take any further legal action regarding the incident or will make a complaint to the e-Safety Commissioner regarding the incident.

We will have to wait and see what happens next, however it is certainly a sage reminder that what happens on reality TV can certainly spill over into the real world.

[1] Legislation Act 2001 (ACT), s133.

[2] https://onlyfans.com/terms

[3] https://www.smh.com.au/culture/tv-and-radio/the-mafs-nude-photo-scandal-is-bad-but-what-will-happen-now-20220321-p5a6jm.html