Sexting in Hong Kong: a complex interplay between young people, technology, and law

ABSTRACT

Sexting by young people is a complex issue concerning the interplay between the participants’ exploration and representation of their developing sexuality, and their use of new communication technologies to socialize in a digital age. Added to this complexity is the way in which the law deals with such sexting, with some jurisdictions allowing prosecution under child pornography laws, while others have introduced measures to prevent the criminalization of young people. This article examines this complex interplay, with a particular focus on Hong Kong. It reviews data on the practice and prevalence of sexting both overseas and in Hong Kong, and explores why sexting is of legal concern. It then examines what legal responses are available for addressing sexting, with a particular focus on child pornography laws. After discussing why it is undesirable to allow prosecution of young people who sext under child pornography laws, the article considers alternative avenues to address sexting in Hong Kong. This includes a review of offences adopted in other jurisdictions as well as some offences recently enacted in Hong Kong and a consideration of non-legal responses.

KEYWORDS:

• Sexting
• children’s rights
• child pornography
• image-based abuse
• youth justice

I. Introduction

Sexting by young people has increasingly become a matter of public debate worldwide. It is a complex issue because it concerns the interplay of young people’s exploration and representation of their developing sexuality, their use of new communication technologies and socialization in a digital age, and legal responses to these behaviours. Sexting is not a clearly defined concept and can encompass varied behaviours and motivations.¹ At its simplest, it may be defined as images or videos that have sexual characteristics and are created, stored, sent, and received digitally, through mobile-phone messaging apps or on social networking sites, such as Facebook, Myspace, YouTube, Snapchat, TikTok, Twitter, etc.² These sexualized images and videos may be consensually taken and shared between friends or intimate partners to flirt, create romantic interest, or have fun with. Images taken consensually may also be distributed to others without consent for various reasons, such as to brag, to bully, or for revenge (colloquially known as ‘revenge porn’). Even where there is apparent consent, this may have been induced by individual pressure, peer pressure, or sociocultural pressure.³ There is also the possibility that images are taken without consent, such as through ‘up-skirting’, or as a result of a sexual assault, and then distributed.⁴ To distinguish these forms of sexting, Wolak and Finkelhor refer to consensual ‘youth-produced sexual images’ as ‘experimental’, and use the term ‘aggravated’ where sexting involves criminal or abuse elements.⁵

Given the vagueness of the general term and that sexting can occur in such varied settings, it is no surprise that views about sexting and what should be done about sexting vary enormously. Some see ‘devices such as smartphones and practices such as sexting’ as showing that society is ‘losing control over the actions of young people and the morals by which they live their sexual lives’.⁶ Others regard sexting as not a significant new phenomenon – feeling rather that, for young people, cyber space complements or replaces real-world socialization and exploration.⁷

Such wide variations in views mean that finding appropriate responses is fraught with difficulty. In some countries, charges have been brought under child pornography laws against young people who sext. This can have severe consequences for the young people involved, including heavy penalties, registration on sex offender registers, and all the attendant ramifications that follow for their future education, employment, and social opportunities. In response to concerns that prosecution of children under child pornography laws may be more harmful than beneficial to young people, some jurisdictions have created prosecutorial barriers and/or defences for young people involved in sexting, modified penalties, or created offences specifically to address the non-consensual distribution of intimate images.

In Hong Kong, there has, however, been little discussion of how the law should respond to sexting. In 2019, the Law Reform Commission of Hong Kong (‘the Law Reform Commission’) published a report recommending the introduction of offences which could have an impact on sexting by young people. However, this report did not specifically investigate sexting by young people, nor did it address in detail the impact that the existing or recommended offences might have on such behaviours. The report identified the need for new offences to address voyeurism and non-consensual ‘upskirt’ photography.⁸ In January 2021, the Security Bureau published a report, following a consultation paper issued in July 2020, noting that the government accepted the recommendations of the Commission for the introduction of offences to cover voyeurism and upskirting.⁹ Acting upon these recommendations, the Crimes (Amendment) Ordinance 2021, which was passed in September 2021, introduces four new offences of voyeurism, unlawful recording or observation of intimate parts, publication of images obtained through these two offences, as well as publication or threats to publish intimate images without consent.

This article aims to address the paucity of information and debate about sexting, and the laws that can, and should, apply to young people in Hong Kong. It begins with an examination of the practice and prevalence of sexting both overseas and in Hong Kong. This is followed by a discussion of some of the issues that sexting raises and why it is of legal concern. The article then evaluates what legal responses are available, focusing on child pornography offences. While noting that, at present, there is no evidence that young people are being prosecuted under such laws for sexting, the article examines how changes to policing practices in Hong Kong could open the door to prosecution of young people. After discussing why charges should not be brought under child pornography laws for young people who engage in sexting, the article considers alternative avenues to address sexting in Hong Kong. Alongside offences adopted in other jurisdictions to specifically deal with image-based abuse, this article reviews the recently enacted offences recommended by the Law Reform Commission and Security Bureau, to assess their suitability to address aggravated sexting – that is, sexting that is non-consensual and exploitative. Recognizing that criminal law responses alone are not suitable for all forms of sexting (particularly where sexting is consensual), this article considers the need for non-legal responses, which focus on education as well as alternative administrative mechanisms to combat non-consensual sexting.

II. Prevalence of sexting

Sexting is a somewhat recent phenomenon; as a result, reporting of the extent of sexting in academic literature varies widely.¹⁰ It is likely that rates of sexting will continue to rise because of increases in access to technology,¹¹ especially Snapchat,¹² the growing use of communication technologies to socialize, and a greater acceptance of sexting as a mode of communication among younger people.¹³ In order to contextualize the discussion about sexting and why it is an issue of legal concern, this section provides a snapshot of the available research on the prevalence of sexting by young people, both overseas and in Hong Kong.

One of the earliest studies of US teenagers in 2009 found that about 4 per cent had sent nude or semi-nude images by cell phone, and around 15 per cent had received them in this medium.¹⁴ As the study was limited to cell-phone communications, this is regarded as a fairly conservative figure. A more recent US nationwide study of 5,593 middle- and high-school students aged between 12 and 17 years old, carried out between August to October 2016, reported that 12.8 per cent of respondents had sent a sext, while 18.5 per cent had received one.¹⁵

A study conducted in Australia, in 2013, surveyed over 2,000 respondents by self-selection. It found significantly higher rates of prevalence. Of those surveyed, around 49 per cent had sent sexual images or videos of themselves, and 67 per cent had received such images.¹⁶ Another nationwide Australian study was conducted by Milton and others of 1,400 Australians aged 16–25, in both 2012 and 2014.¹⁷ This study included a survey of two-way sexting: namely, that the respondents ‘had sent and received sexts’.¹⁸ It found that 42.21 per cent had engaged in two-way sexting in 2014, up from 38.06 per cent in 2012.¹⁹ It further found that 16.93 per cent of respondents had ‘[s]ent someone a photo or video showing yourself nude or nearly nude’.²⁰

In 2015, Wood and others²¹ published an article relating to a project that conducted a survey of schoolchildren, aged between 14 and 17, in five European countries on a number of matters, including questions relating to sexting between those engaged in a relationship, or after its break-up. Of the 277 schoolchildren who participated in this part of the survey, 38 per cent stated that they had sent a sexual image,²² and 48 per cent stated that they had received a sexual image.²³

As part of a broader 2017 UK survey carried out jointly by two organizations, Brook and CEOP, 2,135 young people aged between 14 and 24 were asked if they had ‘[s]ent a sexual or nude photo to someone they were interested in’.²⁴ It was found that 34 per cent of respondents had sent such a message, and 52 per cent had received an image of someone else. For those aged between 14 and 17, 26 per cent stated that they had sent a message to someone they were interested in, and 48 per cent had received an image ‘of someone else’ from someone they were interested in.²⁵

A report by SWGfL / the UK Safer Internet Centre, University of Plymouth, UK; Netsafe, New Zealand; and the Office of the Safety Commissioner, Australia, in 2017 summarized findings from the UK, New Zealand, and Australia.²⁶ In relation to the UK, 681 schoolchildren answered the quantitative element of the survey.²⁷ The sexting part of the survey was directed at identifying whether respondents had ‘knowledge of peers sharing self-generated images’.²⁸ The study revealed that 49 per cent of those surveyed reported knowledge that their peers had shared images which were self-generated.²⁹ These statistics were broken down into further categories, including knowledge of a ‘few’ occurrences in the past year (being 19 per cent of those surveyed) and that it ‘happens all of the time’ (amounting to 12 per cent of the surveyed population).³⁰ Prevalence rates were considerably lower in New Zealand, with around 4 per cent of teens, and 7 per cent of older teens aged 17 years old, reporting they had ‘shared a nude or nearly nude of themselves in the last 12 months’.³¹ However, much higher rates of teens reported being asked to send ‘nudes’ (1 in 5 teens) or knowing someone who had shared ‘nudes’ (4 in 10 teens).³² In relation to Australia, much higher rates were recorded, with almost 1 in 3 young people aged 14–17 reporting having ‘some experience with sexting’, and around 9 out of 10 14- to 17-year-olds reporting that they ‘thought that sexting happened among their peers’.³³

A recent study of over 3,000 adolescents in Hong Kong, published in 2018, found that 7.2 per cent of teenagers in secondary years 1–6 had sent sexts, and 26.3 per cent had received sexts.³⁴ Another Hong Kong study, being a survey conducted by questionnaire of 381 psychology students at a Hong Kong tertiary institution, found higher rates of sending sexts.³⁵ Participants in the study were aged between 17 and 24 years old.³⁶ It found, out of the sample polled, that 18.06 per cent of males and 9.70 per cent of females (12.86 per cent on average) had sexted images of nude or sexually explicit photos of themselves with a sexual connotation or an intention to arouse.³⁷ Factors influencing these gender disparities were the more positive attitude toward sexting, the greater subjective norm (or perception of acceptability of this practice by those whose opinions are important to the performer), and increased perceptions of behavioural control (or skill in carrying out these tasks) by men.³⁸ The authors surmise that these factors are consistent with perceived traditional double standards about liberal sexual practices between men and women in Hong Kong.³⁹

These findings broadly align with a meta-analysis of worldwide studies conducted in 2016, which found that between 2.5 and 36.4 per cent of adolescent respondents in these studies communicated sexually explicit photographs via some form of technology.⁴⁰ Another large-scale meta-analysis of 39 studies of sexting, conducted before 2017 across various countries, found that 14.8 per cent had sent and 27.4 per cent had received a sext.⁴¹ While data from individual countries varies, these studies show that sexting is something which is not uncommon among young people, and it appears that there may be a comparative upward trend in sexting.⁴²

III. Legal issues raised by sexting

While the available studies suggest that sexting is not a marginal practice among young people overseas or in Hong Kong, views about sexting vary enormously. A dominant standpoint is that sexting is associated with risky behaviour and inherent negative implications.⁴³ As such, much of the mainstream discussion has tended to focus on harmful outcomes that may stem from young people engaging in sexting.⁴⁴ One of the earliest articles on sexting, published with the title, ‘The Dangers of Teen Sexting’ in Psychology Today, exemplifies this approach:

Engaging in sexting is a dangerous activity for teens! It can have adverse side effects and the consequences can be life-long. … Plus, according to research, those teens who are sexting or propositioned to send a sext are more likely than their peers to have sexual intercourse.⁴⁵

This quote summarizes some of the negative associations made in relation to young people sexting. The concern is that young people may not be mature enough to appreciate the implications of disseminating sexualized images of themselves online and leaving a digital footprint which can affect future relationship, educational, and employment prospects.⁴⁶ There is also the concern that sexting is connected with other risky sexual behaviours.⁴⁷

While such research appears to rely heavily on hetero-normative assumptions about what amounts to risky behaviours, the fact that there may be a connection between sexting and sexual exploration is unsurprising. It is quite likely that young people who sext are doing this as a way of exploring their sexuality and may well be sexually active. However, whether there is a causal link between sexting and sexual behaviour is not clear. A longitudinal study of the relationship between sexting and sexual behaviour conducted by Temple and Choi found that:

sexting may precede sexual intercourse in some cases [and this] is consistent with the notion that sexting may serve as a prelude or gateway behavior to actual sexual behaviors, or as a way to indicate one’s readiness to take intimacy to the next level.⁴⁸

Nonetheless, Temple and Choi did not report a relationship connecting sexting to risky sexual behaviour.⁴⁹

The negative association between sexting and risky behaviours may, to an extent, be ideologically driven. Many adults do not like to think of young people having and expressing sexual desires.⁵⁰ Often, in the public imagination, young people are conceived of as lacking experience and sexual desires, and therefore it can be ‘difficult for some to conceptualise the transition to the activity and knowledge of adulthood. And this is especially so concerning sexual activity and knowledge’.⁵¹

Another standpoint is that sexting is not a completely new type of behaviour inexorably connected with harm. Researchers holding this view note that young people have always experimented and explored their sexuality, but they can now do so through new media. Bond finds that a difference between experimentation before the advent of new technology and sexting is the location where romantic explorations occur. Instead of taking place in ‘real space’ (e.g. behind the bike shed), today they take place in ‘virtual space’.⁵²

It has also been argued that sexting can be experienced positively by young people. Young people can explore and express themselves safely in cyberspace without being exposed to the potential negative risks associated with sexual experimentation in real life. New communication technologies give young people a platform unconstrained by traditional views about sexuality. In this space, they are free to assemble their own paradigms of sexuality.⁵³ Sexting can allow young people to take control of this aspect of their lives. Indeed, research by Crofts and others found that sexting by young people is largely motivated by a desire to be ‘fun and flirty’, to give ‘a sexy present’, and to ‘feel sexy and confident’.⁵⁴ Similarly, research by McGeeney and Hanson has also found that young people are motivated to sext by a range of factors, including to flirt and have ‘fun with friends’, for ‘sexual enjoyment and intimacy as part of a relationship’, and for ‘body confidence’.⁵⁵ Other research corroborates these results and confirms that sexting is most often done consensually, with only a small minority of young people reporting feeling coerced into sexting.⁵⁶ Accordingly, it appears that there is a ‘greater acceptance among teens of pursuing sexual intimacy online’,⁵⁷ and that sexting is becoming part of the normal ad hoc early experiential sexual activities of young people.

This is not to say that, even when images are taken and shared consensually for fun and to flirt, and there are no issues of overt coercion or direct exploitation, there are no risks or harms. A young person may feel panic, regret, and shame even after consensually sharing an image.⁵⁸ Sexting can also give rise to technologically facilitated abuse and its associated harms.⁵⁹ Indeed, sexting has been linked with cyber-bullying, especially where images are sent (and sometimes even taken) without consent in order to intimidate, harass, or coerce a young person.⁶⁰

There is clearly an overlap between sexting and cyber-bullying which must be taken seriously, but the connection should not be overstated. Research by Lee and others suggests that most sexting occurs within some form of relationship.⁶¹ Only a few respondents noted feeling pressured to sext, or had a negative experience associated with sexting.⁶² Sharrat’s 2019 study, part of which was directed at identifying the extent of intimate-image abuse among those aged under 18 in England, reported similar findings.⁶³ For this research, data was collected from the Professional Online Safety Helpline (POSH). The researchers found that only 4 per cent of cases referred to POSH related to intimate-image abuse,⁶⁴ being the non-consensual sharing of a person’s intimate images.⁶⁵ Also, none of these cases took place within ‘a long-term relationship’.⁶⁶

Even though only low numbers of respondents in the studies by Sharrat and Lee and others reported being pressured or coerced into sexting, it is important to note that a person, particularly a young person, may not disclose coercion either because of fear or a lack of awareness.⁶⁷ Lack of reporting may also be due to a failure by professionals to diligently follow up on peer-to-peer abuse.⁶⁸ Coercion can also be difficult to recognize because it can take many forms. Alongside direct pressure from a friend or romantic partner, young people may be subjected to peer or societal pressures which may be more prevalent and less overt.⁶⁹ Such pressures have a gendered dimension: where there is pressure to engage in sexting, it is more often directed at young women.⁷⁰

Furthermore, there is a gendered double standard in attitudes about those who send sexts, with young women being more likely to be shamed and viewed negatively, compared with young men who send sexts.⁷¹ In this regard, there is also a broader concern that online social networking is increasingly shaped by ‘porno-discourses’⁷² which reproduce and reinforce ideas of young women as ‘commodified’ sexual objects. This can perpetuate young women’s experiences of ‘“everyday” intrusions, routine sexual harassment and sexual assaults in public spaces’.⁷³ These pressures and gendered harms can impact how young women engage in the online environment.⁷⁴

Another concern is that sexting can be seen to enable adult sexual abuse of young people. The availability of sexualized images of children on social media may ‘whet the appetite’ of abusers and feed their fantasies.⁷⁵ Images may also be used to groom young people,⁷⁶ or procure sexual acts by threatening to spread the compromising images online if the victim does not give in to the offender’s sexual demands (labelled ‘sextortion’).⁷⁷

While it is clear that sexting is not necessarily a harmful practice, it is the associations of sexting with negative risks for individuals and society that have tended to stand in the way of reforms to remove young people engaging in sexting from the reaches of criminal law. This means that young people are liable to prosecution in many jurisdictions, including Hong Kong, for child pornography and other offences. Exposing young people to the threat, and reality, of prosecution can present a greater harm than the behaviour itself.⁷⁸

This raises the question of whether the current legal options are appropriate for addressing sexting behaviours. With this in mind the following section examines the criminal offences that are available to prosecute young people for sexting, focusing on child pornography offences, both overseas and in Hong Kong. The appropriateness of utilizing these offences is assessed before considering potential law reform.

IV. Current legal responses to sexting

A. Child pornography offences

Young people who sext can fall foul of several criminal offences,⁷⁹ the most severe of which are child pornography offences. These offences form the basis of the following discussion not only because of their severity, but also because these offences appear to be most commonly debated, to address sexting by young people.

In many jurisdictions, young people who create, possess, or distribute an image of a naked child (even an image of themselves) can be prosecuted for offences of child pornography (some jurisdictions label these child abuse or child exploitation material offences). This is largely because jurisdictions around the world have expanded the definition of child pornography in response to a growing understanding about the nature of paedophilia, the type of images which are of interest to paedophiles,⁸⁰ and concerns about how new technologies are thought to be fuelling child pornography.⁸¹

In 2000, the United Nations adopted an ‘Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography’, which expressed concern ‘about the growing availability of child pornography on the Internet and other evolving technologies’.⁸² This Protocol called on State Parties to expand the definition of child pornography to encompass ‘any representation … of a child engaged in real or simulated sexual activities or any representation of the sexual parts of a child for primarily sexual purposes’.⁸³

The laws covering child pornography in Hong Kong align with the Optional Protocol. The Prevention of Child Pornography Ordinance (Cap 579) (‘PCPO’), enacted in 2003, criminalizes the printing, making, producing, reproducing, copying, importing, exporting, publishing, or possessing of any child pornography, as well as indications that a person has published, publishes, or intends to publish any child pornography.⁸⁴ This definition covers pornographic depictions of a person under 16 (whether a real person or not), and can include images that have been modified. A pornographic depiction includes:

1. a visual depiction that depicts a person as being engaged in explicit sexual conduct, whether or not the person is in fact engaged in such conduct; or

2. a visual depiction that depicts, in a sexual manner or context, the genitals or anal region of a person or the breasts of a female person, but, for the avoidance of doubt, a depiction for a genuine family purpose does not, merely because it depicts any part of the body referred to in paragraph (b), fall within that paragraph.⁸⁵

The definition is designed to be broad enough to capture not only images of children engaged in sexual behaviour, but also images that could be relatively innocent but are sexualized by the viewer. The requirement that the depictions show the genitalia etc., of a child in a sexual manner or context is not likely to act as a legal barrier to the prosecution of young people who sext. Similarly, the clarification that pictures for a genuine family purpose are excluded from the definition of child pornography is unlikely to be satisfied where a young person sexts. The Second Reading Speech, on the PCPO, not surprisingly, did not envisage teen sexting.⁸⁶

In relation to sentencing for offences under the PCPO, Hong Kong’s Court of Appeal noted in Secretary for Justice v Ho Yan Kiu⁸⁷ that a training centre order was appropriate where the offender was aged under 21 at the time of conviction.⁸⁸ This suggests that courts have a degree of flexibility with sentencing for younger offenders, but the possibility of some type of custodial sentence is not ruled out. It was also noted that the offence applies in relation to children under 16, and no mention was made of any exceptions to the sentencing tariff for young people who engage in this conduct with each other.⁸⁹

While it is clear that the PCPO applies to young people, there is little information available on whether young people are being prosecuted in Hong Kong under the Ordinance. Overseas there is evidence that this is the case. In Florida, USA, in 2007, a 17-year-old boy was found guilty of possessing child pornography when he took digital images which showed him and his 16-year-old girlfriend engaging in sexual intercourse.⁹⁰ Additionally, they were found guilty of producing a representation which they knew included sexual conduct of a child.⁹¹ A more recent example in the US concerns a 16-year-old ‘high-school star quarterback’, Cormega Copening, and his 16-year-old girlfriend in North Carolina in 2016.⁹² As the result of a search of Copening’s home in an unrelated matter, the police discovered that the couple had sent nude photographs of themselves to each other. Initially, both were charged with various offences, including possession of child pornography. Eventually, both pleaded guilty to an offence criminalizing minors sending and receiving sexually explicit photos, and were placed on one year’s probation, thus avoiding detention and placement on a sex offenders’ register.⁹³ According to Strasburger, Zimmerman, Temple, and Madigan, 23 US states still prosecute young people under child pornography statutes where they engage in sexting with other young people.⁹⁴

In Australia, it appears that most cases of consensual sexting do not lead to prosecution under child pornography offences, but rather young people are diverted from formal proceedings. For example, in Queensland, between 2006/2007 and 2015/2016, 1,470 young people under the age of 17 were either cautioned by the police or diverted into a court conferencing system, for what appear to be in many instances sexting-type behaviours falling within the aegis of child exploitation material offences.⁹⁵

In the UK, advice in the form of a protocol exists for schools to deal with sexting incidents concerning students which come to their attention.⁹⁶ A key feature of this advice is that schools have discretion to deal with incidents rather than referring them to the police, if those involved are not aged below 13, no adults are involved, and there was no coercion or aggravating circumstances, such as widespread non-consensual dissemination.⁹⁷ Quoting from the UK Council for Child Internet Safety, ‘If a young person has shared imagery consensually, or as a joke, and there is no intended malice, it is usually appropriate for the school to manage the incident directly.’⁹⁸ In other cases, the matter will be referred to the police.⁹⁹

Where a matter has been referred to the police, absent the types of aggravating circumstance like coercion or exploitation, then to prevent, where possible, children from being criminalized,¹⁰⁰ police have substantial discretion as to how to proceed with a report of sexting.¹⁰¹ Although underage sexting complaints need to be recorded by the police,¹⁰² depending on the circumstances, they could be dealt with as ‘Outcome 21’, which states that ‘further investigation, resulting from the crime report, which could provide further evidence sufficient to support formal action being taken against the suspect is not in the public interest’.¹⁰³ In 2014/2015, of the 6,238 offences reported to police of ‘children sharing or possessing sexual images of themselves or others’,¹⁰⁴ 2,079 cases were categorized as Outcome 21, 63 young people received charges, and the remaining 4,096 offences were not further pursued, for reasons such as victims not wanting the case to proceed or a lack of sufficient evidence.¹⁰⁵

Although to date, there is little information available in this regard in Hong Kong, the lack of reports of prosecutions suggests that the approach in Hong Kong is similar to that in Australia and the UK, where police and prosecutors are seemingly not engaged in widespread prosecution of young people engaged in sexting. Rather, it appears likely that young people may be diverted from prosecution under the Police Superintendent’s Discretion Scheme, which has been operating in Hong Kong since 1963.¹⁰⁶ Under this scheme, a person under 18 can be cautioned and placed under police supervision rather than being prosecuted, where they voluntarily and unequivocally admit the offence, there is sufficient evidence to prosecute, and the parents or guardians agree to the caution.¹⁰⁷

B. Risks of no barriers to prosecution of children

While it seems that there is no appetite to subject young people to prosecution under the PCPO, where they engage in sexting behaviours in Hong Kong, the examples from other countries, particularly the US, demonstrate that there is a danger that these offences can be utilized. Unless protections are put in place, prosecutorial practice and policy can easily change, and young people could be subjected to prosecution. An example of a recent change in police practice in Hong Kong that could increase the likelihood of young people being apprehended for sexting behaviours relates to actions in accessing, through search warrants, the mobile phones of 3,721 people arrested between June and November 2019 during the period of social unrest.¹⁰⁸ The ability of police to search phones has supposedly been facilitated by new software allowing criminal investigators to access data by circumventing security features in mobile devices.¹⁰⁹ This means that images that could fall within the definition of child pornography, and have been stored on mobiles phones, could be accessed by police.

Further compounding this concern is the recent decision of Sham Wing Kan v Commissioner of Police,¹¹⁰ which expressly provides for the warrantless search of the digital contents of mobile phones incidental to an arrest. In this case, the Court of Appeal took the view that the principles governing the power to search the digital contents of a mobile phone are governed by the common law, rather than the stricter requirements of Section 50(6) Police Force Ordinance (Cap 232) (PFO).¹¹¹ In this case, the Court of Appeal acknowledged that, ‘[t]he regular use of a mobile phone as a multifunctional minicomputer to conduct one’s daily life generates a wealth of information about the user’s interests, habits … and even sexual associations without the knowledge or intent of the user'.¹¹² Ultimately, it held that a search of the digital contents of a mobile phone, as with any warrantless search, must satisfy the proportionality test.¹¹³ Namely, that ‘[t]he set of criteria permitting a warrantless search of digital contents of a mobile phone must serve legitimate interests, rationally connected with such interests and the permitted search should be no more than necessary to accomplish such interests’.¹¹⁴ While the Court of Final Appeal did apply a number of safeguards, the test was broadly framed and potentially open to various interpretations, depending on the nature of the case.¹¹⁵

Adding to apprehensions of police arrests inadvertently leading to further arrests for sexting behaviour, the Court of First Instance has recently considered the restrictions that need to be imposed on the ambit of search warrants issued by magistrates pursuant to Section 50(7) PFO, which relates to the search of a mobile phone of an arrested person.¹¹⁶ The Court held that it is not necessary for magistrates to specify what documents can be searched on such search warrants, even though this will result in officers being permitted to at least scan all the digital contents of the seized phone.¹¹⁷ This means that if there are no other parameters, such as key search words limiting the data mining involved in this exercise, then the risks increase that other information might be revealed.¹¹⁸ Therefore, these types of searches have the potential to further ensnare young people in the criminal justice system.

C. The need for barriers to prosecution of young people

It would be only in unusual cases that prosecution of a young person for a child pornography offence would be an appropriate response to sexting. As the Victorian Law Reform Committee in Australia comments, ‘child pornography laws were created for the purpose of protecting children from predatory sexual behaviour … [they] were not designed to capture this [sexting] type of behaviour’.¹¹⁹ Similarly, in Hong Kong, the sole policy determinant behind the enactment of the PCPO was to deter paedophiles.¹²⁰

Young people’s behaviour rarely fits the rationale that led to the creation and strengthening of these offences. Young people engaging in sexting are generally not showing paedophilic tendencies; they are interested in images of ‘people in their own age group, at a similar stage of physiological and psychological development, and with similar interests’.¹²¹ Nonetheless, as Aiken argues:

One of the problems is that sexting is viewed almost exclusively through the lens of child pornography, and while it is true that the images can look very similar, they are different in terms of intent. In one instance, the explicit image taken by a teenage girlfriend and boyfriend is done voluntarily, and at the other end of the spectrum, the image is coerced from a child victim by a criminal sex offender. There needs to be an active review of the law in this area and the creation of a legal classification framework that differentiates between teenage voluntary sexual exploration and criminal generation of child abuse material, the defining criteria being mens rea, or intent.¹²²

Further in this regard, the PCPO, and the raft of similar offences in Australia, England and Wales, the USA, and elsewhere, were enacted before young people’s access to smartphones became widespread. They were thus generally enacted without considering the fact that young people could be caught up in such offences for engaging in sexting.¹²³

When sexting is consensual and not exploitative, there should be no need for a criminal law response. Education may be the best way of ensuring that young people are equipped to safely navigate such behaviours and identify when there is exploitation. In the UK, Baroness Noakes encapsulated concern about over-reliance on prosecutorial discretion in cases of sexual offending involving young people:¹²⁴

It continues to trouble me that we must rest on prosecutorial discretion in determining which sexual activities are to be treated as criminal. … We should remember also that while child offences include full sexual intercourse, they extend to a lot of other activities such as kissing, heavy petting and looking at dirty magazines. I wonder if there are any children under 16 who do not engage in one or more of those activities.

Sexting between young people which is non-consensual and/or exploitative also does not fit the rationale for criminalizing child pornography, but it does represent a violation of a young person’s privacy, dignity, and sexual autonomy. This may require a criminal law response, not in the form of a child pornography offence, but some other offence directed at the actual harm involved.¹²⁵ Proposals for how best to respond to sexting are discussed in the following section.

V. What should be done about sexting?

A. Restricting the availability of child pornography offences

Given that young people’s engagement in sexting will rarely fit the rationale underlying child pornography offences, and that prosecution can have significant negative impacts on young people’s lives, such offences should not apply or should only apply in limited circumstances to young people. One way of limiting the reach of the PCPO in cases involving young people sexting would be to enact a provision requiring the permission of the Secretary for Justice or the Director of Public Prosecutions before a person under the age of 18 can be prosecuted under the PCPO. Such a provision, requiring permission of the Attorney-General before initiating proceedings against a young person, was included in the Commonwealth Criminal Code Act 1995 in Australia, following concerns about the negative impacts of such prosecutions.¹²⁶ This has the advantage of placing decisions about whether to prosecute young people at a higher level, thus making them more consistent and easier to review. It would also go some way to protect against overzealous individual prosecutors, but it would not completely prevent prosecution of young people under the PCPO.

A further restriction would be to introduce a defence into the PCPO for young people, as has occurred in a number of Australian and US states. An example is New South Wales, where a 2018 amendment to the Crimes Act 1900 provides that a person does not commit the offence of possession of child abuse (pornography) material where the person was under 18, and a reasonable person would consider the possession reasonable. Reasonableness is assessed based on: the content and nature of the material; the manner in which it was produced and how the accused came to possess it; matters such as the child’s age, vulnerability and intellectual ability, and other matters relating to the child (who was displayed in the material) as well as in relation to the accused, occurring both when in possession and arrested; and the parties’ relationship.¹²⁷ A defence also applies to possession if the accused person is the only person depicted in the image, and to producing or disseminating where the accused person is under 18 and the only person depicted in the image.¹²⁸ Notably, this defence does not extend to a person under 18 producing or disseminating images of another person under 18.

While 23 states in the US continue to allow the prosecution of young people under child pornography laws, others have either developed defences or exceptions, provided reduced penalties on conviction,¹²⁹ or introduced diversionary programmes¹³⁰ (which involve education on the consequences of sexting).¹³¹ An alternative approach, adopted in 19 states, is to provide for a separate misdemeanour sexting offence (such approaches are discussed in the following section).¹³²

In Maine, a person does not violate the offence of possession or dissemination of sexually explicit material if the person depicted in the image ‘is 14 or 15 years old and the defendant is less than 5 years older than the person depicted’.¹³³ In Nebraska, it is an affirmative defence to a charge of possession of a visual depiction of sexually explicit conduct involving a child¹³⁴ if:

1. The visual depiction portrays no person other than the defendant;  or

2. (i) The defendant was less than nineteen years of age; (ii) the visual depiction of sexually explicit conduct portrays a child who is fifteen years of age or older; (iii) the visual depiction was knowingly and voluntarily generated by the child depicted therein; (iv) the visual depiction was knowingly and voluntarily provided by the child depicted in the visual depiction; (v) the visual depiction contains only one child; (vi) the defendant has not provided or made available the visual depiction to another person except the child depicted who originally sent the visual depiction to the defendant; and (vii) the defendant did not coerce the child in the visual depiction to either create or send the visual depiction.¹³⁵

Inserting a defence into the PCPO would acknowledge that sexting generally does not fit the rationale for such offences. It would help ensure that only the most serious cases are prosecuted under the PCPO. Such an approach could be combined with reduced penalties for young people who are convicted under the PCPO. However, reduced penalties alone are insufficient because they do not restrict the availability of child pornography offences. Equally, if diversionary programmes are adopted, they should be used to divert young people from prosecution rather than provided as an alternative sanction upon conviction. Such programmes should also be carefully designed not just to educate about negative risks involved in sexting, but to help foster ‘positive practices for engagement with the online world’.¹³⁶

B. Introducing new specific offences

In recent years, many jurisdictions have created offences to criminalize the non-consensual distribution of intimate images, or what is colloquially known as ‘revenge porn’.¹³⁷ This behaviour is generally associated with adults disseminating intimate images without consent, in an act of revenge. However, there are many varied situations in which intimate images may be taken, possessed, and disseminated, and these behaviours are not limited to adults.¹³⁸ Indeed, the Australian state of Victoria, one of the first jurisdictions to enact laws relating to the non-consensual distribution of intimate images, did so following recommendations made by the Law Reform Committee in its inquiry into sexting by young people.¹³⁹ In the US, 19 states have adopted offences to specifically address sexting.¹⁴⁰

There is considerable variation in how image-based abuse offences are defined, but generally they cover the intentional dissemination of intimate images, with the knowledge that the subject of an image did not consent to the distribution, or recklessness as to whether consent was given. ‘Intimate images’ generally covers images of a person’s genitals, anal region, or breasts (of a female), as well as images of a person engaging in a private act (bathing, using the toilet, or engaging in a sexual act) where they would expect privacy. Such offences may also cover threats to non-consensually distribute intimate images and also non-consensual possession.¹⁴¹ In some jurisdictions, the distribution, possession, or threat to distribute must be done with the intention or belief that this will cause alarm, humiliation, or distress to the subject of the image.¹⁴²

In Hong Kong, the Crimes (Amendment) Ordinance 2021, passed in September 2021, has enacted offences which could be relevant to sexting by young people. These offences are based on recommendations by the Law Reform Commission in a 2019 report,¹⁴³ and by the Security Bureau in a report from January 2021.¹⁴⁴ The Crimes (Amendment) Ordinance 2021 inserts four new offences into the Crimes Ordinance (Cap 200). The offences encompass voyeurism, unlawful recording or observation of intimate parts, publication of images originating from voyeurism or unlawful recording of intimate parts, and publication or threatened publication of intimate images without consent.¹⁴⁵

The offences relating to voyeurism and unlawful recording or observation of intimate parts were recommended by the Law Reform Commission in 2019 based on Sections 67 and 67A of the Sexual Offences Act 2003 (E&W).¹⁴⁶ A person commits the offence of voyeurism¹⁴⁷ if, in circumstances where a subject individual¹⁴⁸ has a reasonable expectation of privacy, the person surreptitiously and with disregard¹⁴⁹ to whether the subject individual consents:

1. observes (with or without the aid of equipment) or records an individual in a place in which any individual can reasonably be expected to be nude, to reveal an intimate part, or to be doing an intimate act;

2. observes (with or without the aid of equipment) or records an intimate part of an individual, or an individual doing an intimate act, for the purpose of observing or recording an intimate part or an intimate act, of any individual; or

3. observes (with or without the aid of equipment) or records an individual for a sexual purpose.

Intimate parts refers to an individual’s genitals, buttocks, anal region, or breasts (regardless of the person’s sex), whether exposed or only covered by underwear or an individual’s underwear covering these areas.¹⁵⁰ An intimate image also includes an image that has been altered to appear to show intimate parts or intimate acts of an individual, unless no reasonable person would believe that it shows such things.¹⁵¹

A separate offence applies in situations where a person’s intimate part would not ordinarily be visible (e.g. situations often referred to as ‘down-blousing’ or ‘up-skirting’) and a person, with disregard to the individual’s consent, records or operates equipment with the intention of observing or recording a person’s intimate parts beneath or through a gap in clothing.¹⁵² This offence requires that the person engages in this conduct for a sexual purpose or dishonestly. Publishing images obtained by committing the offences described above is an offence if a person knows or is reckless as to whether the image originates from one of these offences and disregards whether the person consents to publication.¹⁵³ The fourth offence applies in situations where a person, with disregard for the lack of consent of an individual, publishes or threatens to publish intimate images of an individual who does not consent to publication, and the person intends, knows, or is reckless as to whether the publication is likely to cause humiliation, alarm or distress to the individual.¹⁵⁴

The advantage of these offences is that they address the core harm caused by such behaviours: that is, violation of the victim’s privacy, dignity, and sexual autonomy through the observing, recording, and sharing of intimate images without consent. In relation to sexting by young people, these offences would be a better alternative to child pornography offences, which do not accurately reflect the harm associated with sexting, nor the motivations for sexting. However, while these offences all relate to non-consensual behaviours and thus would be more readily applicable to non-consensual forms of sexting, it should be noted that they can also be applicable to cases where a young person ostensibly¹⁵⁵ gives consent. This is because the Crimes Ordinance (Cap 200), S 159AAG provides that an individual under 16 cannot give consent that would prevent a person’s conduct from becoming one of the relevant offences.¹⁵⁶ A defence is available where the subject of the image is under 16 and the person can prove that they honestly believed that the subject of the image gave consent, and they did not know or had no reason to suspect that the subject was under the age of 16.¹⁵⁷ However, it is quite likely in cases of consensual sexting that the young people will know one another, and hence it may be difficult for a person to establish that they did not know and had no reason to suspect that the subject of the image was under 16.

The concern is that the introduction of these new offences could lead to increased numbers of young people being brought into the criminal justice system. Currently, it seems that police and prosecutors are reluctant to commence criminal proceedings against young people, possibly because child pornography offences are seen as inappropriate or overly harsh. However, this reticence may lessen with the enactment of offences designed specifically to cover the recording and sharing of intimate images.

It is hoped that police will divert young people under the Police Superintendents’ Discretion Scheme, despite the enactment of these offences in cases of consensual, experimental sexting. However, while such discretionary schemes may be very useful,¹⁵⁸ they may ‘not provide a great deal of certainty or transparency to young people’.¹⁵⁹ Discretion is, of course, an essential element of most criminal justice systems. However, its exercise without clear guidance leaves the prosecution of young people potentially open to political and cultural caprice.¹⁶⁰ Transparent prosecutorial guidelines, indicating the basis upon which prosecution should proceed, might ‘militate against any perceived possibilities of (using a phrase coined by Bibas) “idiosyncratic” prosecutorial discretion’.¹⁶¹ Such guidelines should make clear when prosecution is in the public interest, as well as clarifying that criminal offences should be reserved for more egregious forms of behaviour, such as aggravated forms of sexting, where there is no consent, and particularly in cases involving exploitation or coercion.

C. Non-legal responses

1. Education

Education is the key to ensuring that young people are given the tools to deal with their developing sexuality and to safely negotiate dealing with others. At the moment, however, it is not mandatory in Hong Kong for schools to provide comprehensive sex education to students.¹⁶² Currently, the government relies on ‘guidelines’ that leave schools substantial discretion as to what they teach about sex.¹⁶³ Although some of the topics mentioned in these guidelines could cover sexting, it is not specifically mentioned as an area to be covered.¹⁶⁴

It would be preferable, and consistent with current policy,¹⁶⁵ for schools to engage in comprehensive sex education which addresses topical issues, including sexting, in a holistic way. As Leung comments, comprehensive sex education is:

empowerment-based [and] rooted with values and practices emphasizing human rights, gender equality, participative learning, youth advocacy and civic engagements, as well as cultural appropriateness. It aims to equip students with knowledge, values/attitudes, and skills to facilitate students to make informed decisions that promote sexual health.¹⁶⁶

Conducted effectively, aside from informing students about the potential negative impacts consequent upon engaging in sexting, sex education might also help them understand why they might be motivated at this stage of their life to do so.¹⁶⁷

Furthermore, in relation to the nuances of both the hazards of sexting and the underlying reasons for it, curriculum design in relation to sexting could take into account the seemingly different attitudes and effects between males and females, as reported in a study by Liong and Cheng, published in 2017.¹⁶⁸ The results of this study indicated that young men were more likely to sext than young women,¹⁶⁹ and in this regard, to have a more positive attitude toward sexting.¹⁷⁰ Following on from these results, and the danger to young women of both prosecution under child pornography laws and the greater risk of reputational damage than young men may face from sexting, Liong and Cheng have concluded that ‘youth service professionals should educate and guide youngsters to exercise their own sexual agency, to think through the possible consequences of sexting and the ways to tackle them, and to respect others’ sexual subjectivity’.¹⁷¹ While tuition on matters of female empowerment as to their sexual agency are probably beyond the presently acceptable scope of a school curriculum in Hong Kong,¹⁷² the remaining suggestions arguably constitute less controversial practical advice.

Education campaigns should be embedded in a holistic broader approach to education about cyber safety that focuses on ‘developing positive practices for engagement with the online world’.¹⁷³ Such campaigns should avoid focusing on only negative stories about the impact of sexting because this does not accord with the majority of young people’s experiences.¹⁷⁴ Furthermore, as the Expert Group on Preventing Sexual Offending Involving Children and Young People cautions:

Behaviour change and social norms theory suggests that trying to shock people with daunting figures about the scale of a problem can also fail or backfire simply because of the suggestion that the unwanted behaviour is commonplace. This means that the behaviour is perceived as being more normal and less wrong, and also acts as a ‘magnet’, whereby people are more likely to decide to engage in that behaviour.¹⁷⁵

The Expert Group recommends that a ‘social marketing approach’ using ‘[s]ocial media and traditional methods of sharing messages (on public transport, TV, radio programmes and newspapers) and providing advice on where to access further information (and support)’ be adopted.¹⁷⁶ The establishment of a Children’s Commission in 2018 in Hong Kong will hopefully attract the input of younger people to better inform policymakers on how to develop educational materials that speak to young people’s experience.¹⁷⁷

2. Administrative measures

Alongside legal and educational measures, a range of administrative approaches should be adopted to address sexting. Social media and mobile providers can be encouraged to be swifter and more diligent in enforcing the terms of their contracts, which usually allow for suspension or termination where services are used for illegal or offensive behaviour.¹⁷⁸ The UK Government supported such voluntary initiatives on the basis that ‘government alone cannot keep citizens safe from online harms’, therefore it ‘sought to work in close partnership with industry to put in place specific technical solutions to make social media platforms safer’.¹⁷⁹ While noting that voluntary initiatives have led to promising results in some areas and some companies ‘have taken a number of steps to improve their platforms’,¹⁸⁰ voluntary measures alone were found not to be adequate.¹⁸¹ The UK Government notes that:

At present many online companies rely on using their terms and conditions as the basis by which to judge complaints. In practice however, companies’ terms and conditions are often difficult for users to understand, and safety policies are not consistent across different platforms, with take-down times, description of harms and reporting processes varying.¹⁸²

The British Government therefore recommends that new regulatory approaches to tackle online harms be developed.¹⁸³ One such alternative regulatory approach is that adopted in Australia, where the office of the eSafety Commissioner was established in 2015. Alongside providing educational and training resources, the Office of the Safety Commissioner has a complaints process for dealing with abusive and illegal online content. The Office will investigate such content and can assist with its removal from social media.¹⁸⁴ The creation of such an office in Hong Kong, to protect the online safety of all people in Hong Kong, would be a positive step.

VI. Conclusion

Research in many countries has shown that sexting practices are relatively common among young people, and this has become a reality of young people’s lives. While sexting may have negative impacts on young people, it can also be a positive part of a young person’s exploration of their sexuality. Despite this mixed picture, legal responses have tended to focus on the potential negative impacts of sexting, and in some jurisdictions, young people have been prosecuted under child pornography laws. While it appears, in Hong Kong, that young people are being diverted from formal proceedings for sexting behaviours rather than being prosecuted under the PCPO, there is potential for prosecutorial practice to change.

However, given that sexting by young people rarely fits the rationale behind child pornography offences, especially when engaged in consensually, and that prosecution for such offences is an overly harsh and inappropriate response to sexting, barriers to such prosecution should be developed in Hong Kong. This could mean requiring the permission of the Secretary of Justice before allowing prosecution against a young person to be initiated and/or introducing a defence into the PCPO for young people. Under this approach, prosecution would be reserved for only the most egregious cases.

The newly created alternative offences might also be considered more appropriate to tackle non-consensual sexting. Here, there is the danger of net-widening because these offences might be seen as being developed specifically to facilitate prosecution of sexting behaviours. However, such prosecution should be reserved for cases of aggravated sexting, where there is no consent, particularly where there is coercion or abuse. The development of prosecutorial guidelines could help ensure that prosecutions only occur in such cases, and that, generally, young people are diverted from formal proceedings under the Police Superintendent’s Discretion Scheme.

It should also be recognized that a criminal response to sexting can have a negative impact on a young person which may outweigh the negative impact of the behaviour the law is seeking to address. Therefore, there should not only be a reliance on criminal law as a means of addressing sexting behaviours and ensuring the online safety of young people. Young people live increasingly in an online world, and it is important to help them to negotiate that world as safely as possible through appropriate educational measures, as well as providing alternative avenues for investigating and dealing with online abusive behaviours.

Acknowledgements

The authors would like to thank Andrew Dyer, John Marray, Normann Witzleb, and the anonymous reviewers for their helpful comments on earlier drafts of this article. Any errors or omissions remain our own.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Law Reform Committee, Parliament of Victoria, Inquiry into Sexting (Parliamentary Paper 230, 2013) [2.2.1].

2 See the Joint Select Committee on Cyber-Safety, Parliament of Australia, High Wire Act: Cyber Safety and the Young, Interim Report (2011) [4.47]; Yara Barrense-Dias and others, ‘Sexting and the Definition Issue’ (2017) 61 Journal of Adolescent Health 544.

3 Murray Lee and Thomas Crofts, ‘Gender, Pressure, Coercion and Pleasure: Untangling Motivations for Sexting Between Young People’ (2015) 55 British Journal of Criminology 454.

4 Law Reform Committee (n 1) [2.2.1].

5 Janis Wolak and David Finkelhor, ‘Sexting: A Typology’ (2011) Crimes Against Children Research Center, University of New Hampshire: Durham, NH, USA <https://scholars.unh.edu/ccrc/48> accessed 24 August 2020.

6 Sander De Ridder, ‘Mediatization and Sexuality: An Invitation to a Deep Conversation on Values, Communicative Sexualities, Politics and Media’ MEDIA@LSE Working Paper Series, 2017, 13 <https://biblio.ugent.be/publication/8509213/file/8509214.pdf> accessed 24 August 2020.

7 Emma Bond, ‘The Mobile Phone = Bike Shed? Children, Sex and Mobile Phones’ (2011) 13 New Media & Society 587; Bryn Ostrager, ‘SMS. OMG! LOL! TTYL: Translating the Law to Accommodate Today’s Teens and the Evolution from Texting to Sexting’ (2010) 48 Family Court Review 712.

8 Law Reform Commission of Hong Kong, Voyeurism and Non-Consensual Upskirt-Photography, Report (April 2019) <https://www.hkreform.gov.hk/en/docs/rvoyeurism_e.pdf> accessed 24 August 2020.

9 Security Bureau, Legislative Council, Report on the Consultation on Proposed Introduction of Offences of Voyeurism, Intimate Prying, Non-Consensual Photography of Intimate Parts, and Related Offences (January 2021), [1.07]–[1.08] <https://www.sb.gov.hk/eng/special/voyeurism/Consultation_Report_on_Voyeurism_Eng.pdf> accessed 18 January 2021.

10 Kam Kosenko, ‘Sexting and Sexual Behaviour, 2011–2015: A Critical Review and Meta-Analysis of a Growing Literature’ (2017) 22 Journal of Computer-Mediated Communications 141.

11 Robert Weiss and Charles P Samenow, ‘Smart Phones, Social Networking, Sexting and Problematic Sexual Behaviors—A Call for Research’ (2010) 17 Sexual Addiction & Compulsivity 241; V C Strasburger and others, ‘Teenagers, Sexting, and the Law’ (2019) 143(5) Pediatrics: e20183183.

12 Joris Van Ouytsel and others, ‘Sexting: Adolescents’ Perceptions of the Applications Used for, Motives for, and Consequences of Sexting’ (2017) 20 Journal of Youth Studies 446, 448.

13 Kosenko (n 10) 142.

14 Kaitlin Lounsbury, Kimberly Mitchell, and David Finkelhor, ‘The True Prevalence of “Sexting”’ (April 2011) Crimes Against Children Research Centre, 1, 3 <https://www.researchgate.net/publication/259148923_The_True_Prevalence_of_Sexting> accessed 24 August 2020.

15 James W Patchin and Sameer Hinduja, ‘The Nature and Extent of Sexting Among a National Sample of Middle and High School Students in the US’ (2019) 48 Archives of Sexual Behaviour 2333, 2337.

16 Thomas Crofts and others, Sexting and Young People (Palgrave Macmillan, 2015) 107.

17 Alysa C Milton and others, ‘Sexting, Web-Based Risks, and Safety in Two Representative National Samples of Young Australians: Prevalence, Perspectives, and Predictors’ (2019) 6(6) JMIR Mental Health 3.

18 Ibid, 4.

19 Ibid.

20 Ibid.

21 Marsha Wood and others, ‘Images Across Europe: The Sending and Receiving of Sexual Images and Associations with Interpersonal Violence in Young People’s Relationships’ (2015) 59 Children and Youth Services Review 149.

22 Ibid, 154.

23 Ibid, 155.

24 Ester McGeeney and Elly Hanson, ‘Digital Romance: A Research Project Exploring Young People’s Use of Technology in Their Romantic Relationships and Love Lives’ (12 December 2017) National Crime Agency and Brook 12 <http://legacy.brook.org.uk/data/DR_REPORT_FINAL.pdf > accessed 24 August 2020.

25 Ibid.

26 SWGfL/UK Safer Internet Centre, University of Plymouth, UK, Netsafe, New Zealand, and Office of the Safety Commissioner, Australia, Young People and Sexting — Attitudes and Behaviours: Research Findings from the United Kingdom, New Zealand and Australia (13 December 2017) <https://www.esafety.gov.au/sites/default/files/2019-07/Young%20people%20and%20sexting-netsafe-UK%20Safer%20Internet%20Centre-Plymoth%20University-eSafety%20Commissioner.pdf> accessed 24 August 2020.

27 Ibid, 4.

28 Ibid, 5.

29 Ibid.

30 Ibid.

31 Ibid, 11.

32 Ibid.

33 Ibid, 14.

34 P Ip, C K M Lo, and R S M Wong, Cyberbullying: Risk Factors and Consequences from a Health Perspective (4 September 2018) PowerPoint Slide 27 <www.lawtech.hk/cyberbullying2018__/wp-content/uploads/2018/ptt/Patrick.pdf> accessed 24 August 2020.

35 Mario Liong and Grand H L Cheng, ‘Sext and Gender: Examining Gender Effects on Sexting Based on the Theory of Planned Behaviour’ (2017) 36(7) Behaviour and Information Technology 726.

36 Ibid, 729.

37 Ibid, 729 and 730.

38 Ibid, 727, 731, and 732.

39 Ibid, 731.

40 E L Courtice and K Shaughnessy, ‘Technology-Mediated Sexual Interaction and Relationships: Systemic Review of the Literature’ (2017) 32(3–4) Sexual and Relationship Therapy 269, 279.

41 S Madigan and others, ‘Prevalence of Multiple Forms of Sexting Behavior Among Youth: A Systematic Review and Meta-Analysis’ (2018) 172(4) JAMA Pediatrics 327. For discussion of other research collaborating these findings, see Strasburger and others (n 11) 2.

42 Strasburger and others (n 11) 3.

43 For discussion, see Lee and Crofts (n 3).

44 For discussion, see Crofts and others (n 16); Alyce McGovern and Murray Lee, ‘A Sexting “Panic”? What We Learn from Media Coverage of Sexting Incidents’ in Michel Walrave and others (eds), Sexting: Motives and Risk in Online Sexual Self-Presentation (Palgrave Macmillan, 2018) 99.

45 Raychelle Lohmann, ‘Dangers of Teen Sexting’ [2012] Psychology Today <https://www.psychologytoday.com/us/blog/teen-angst/201207/the-dangers-teen-sexting> accessed 24 August 2020.

46 For discussion, see Crofts and others (n 16).

47 See, e.g. Joseph Dake and others, ‘Prevalence and Correlates of Sexting Behavior in Adolescents’ (2013) 7 American Journal of Sexuality Education 1.

48 Jeff Temple and HyeJeong Choi, ‘Longitudinal Association Between Teen Sexting and Sexual Behavior’ (2014) 135 Pediatrics 1287, 1291.

49 Ibid, 1291.

50 Stevi Jackson, Childhood and Sexuality: Understanding Everyday Experience (Blackwell, 1982) 3.

51 Joanne Faulkner, ‘Vulnerability and the Passing of Childhood in Bill Henson: Innocence in an Age of Mechanical Reproduction’ (2011) 11 Parrhesia 53 n 11.

52 Bond (n 7).

53 Brian Simpson, ‘Challenging Childhood, Challenging Children: Children’s Rights and Sexting’ (2013) 16 Sexualities 690.

54 Crofts and others (n 16).

55 McGeeney and Hanson (n 24) 12. Other factors noted include pressure from a friend or partner and getting back at someone.

56 See Strasburger and others (n 11) 3, with further references.

57 Ibid.

58 Joint Select Committee (n 2) [4.60]; Sue Murray, ‘Safeguarding Children and Young People in the Online Environment: Safeguarding Implications of Texting and Associated Online Behaviour’, Journal of Nursing Research and Practice (May 2018) 3 <https://www.pulsus.com/scholarly-articles/safeguarding-children-and-young-people-in-the-online-environmentsafeguarding-implications-in-respect-of-sexting-and-associated-onl-4517.htm> accessed 24 August 2020.

59 See, e.g. Anastasia Powell and Nicola Henry, ‘Sexual Violence and Harassment in the Digital Era’ in Antje Deckert and Rick Sarre (eds), The Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice (Palgrave Macmillan, 2017) 205.

60 See, e.g. Ilan Katz and others, Research on Youth Exposure to, and Management of, Cyberbullying Incidents in Australia, Synthesis Report, Social Policy Research Centre 2014 <https://yla.org.au/wp-content/uploads/2018/09/Cyberbullying_Research_Report_-_Synthesis.pdf> accessed 24 August 2020.

61 Murray Lee and others, ‘Sexting Among Young People: Perceptions and Practices’ (2015) 508 Trends & Issues in Crime and Criminal Justice; see also Kimberly Mitchell and others, ‘Prevalence and Characteristics of Youth Sexting: A National Study’ (2012) Pediatrics 13.

62 Lee and others (n 61); see also Strasburger and others (n 11) 3.

63 Elena Sharratt, ‘Intimate Image Abuse in Adults and Under 18s: A Comparative Analysis of Cases Dealt with by the Revenge Porn Helpline and Professionals Online Safety Helpline’ (2019) 5 <https://swgfl.org.uk/assets/documents/intimate-image-abuse-in-adults-and-under-18s.pdf> accessed 24 August 2020.

64 Ibid, 23.

65 Ibid, 7.

66 Ibid, 31.

67 Ibid.

68 Ibid.

69 Lee and Crofts (n 3).

70 Ibid.

71 Jessica Ringrose and others, ‘Teen Girls, Sexual Double Standards and “Sexting”: Gendered Value in Digital Image Exchange’ (2013) 14 Feminist Theory 305.

72 Jessica Ringrose, ‘Sluts, Whores, Fat Slags and Playboy Bunnies: Teen Girls’ Negotiations of “Sexy” on Social Networking Sites and at School’ in C Jackson, C Paechter, and E Renold (eds), Girls and Education 3–16: Continuing Concerns, New Agendas (Open University Press, 2010) 170, 171.

73 Anastasia Powell and Nicola Henry, Sexual Violence in a Digital Age (Palgrave Macmillan, 2017) 25.

74 Ibid, 24.

75 See R v Schultz (2008) 450 AR 37.

76 Osborne v Ohio (1990, 495 US 103), where the Court referenced evidence suggesting that child pornographic materials are used to entice young people into sexual behaviour, 111.

77 Ethel Quayle, Over the Internet, Under the Radar: Online Child Sexual Abuse and Exploitation — A Brief Literature Review (February 2017) 22 <https://cycj.org.uk/wp-content/uploads/2017/02/Over-the-Internet-literature-review.pdf> accessed 24 August 2020. An example in Hong Kong is HKSAR v Wong Dawa Norbu Ching Shan [2013] HKDC 853.

78 Murray Lee and Thomas Crofts, ‘Harms and Alarms: A Zemiological Analysis of Sexting by Young People’ in Kate Gleeson and Catharine Lumby (eds), The Age of Consent: Young People, Sexual Abuse and Agency (UWA Publishing, 2019) 49.

79 E.g. in Hong Kong: Offences in Connection with Telephone Calls or Messages or Telegrams, S 20 Summary Offences Ordinance Offences (Cap 228); Indecent Conduct Towards a Child Under 16, S 146 Crimes Ordinance (Cap 200); Use, Procurement or Offer of Persons Under 18 for Making Pornography or for Live Pornographic Performances, S 138A Crimes Ordinance (Cap 200).

80 See Max Taylor and Ethel Quayle, Child Pornography: An Internet Crime (Routledge, 2003) 193.

81 Concerns were expressed at the International Conference on Combating Child Pornography on the Internet, held in Vienna in 1999. See UN Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography, A/RES/54/263 of 25 May 2000.

82 Ibid.

83 Ibid, Art 2(c).

84 PCPO, S 3.

85 PCPO, S 2.

86 Quoting from the Legislative Council, Official Record of Proceedings, 23 January 2002, at 3285 <https://www.legco.gov.hk/yr01-02/english/counmtg/hansard/cm0123ti-translate-e.pdf> accessed 13 April 2021: ‘Moreover, as children under the age of 16 are considered more vulnerable for they may not be able to make independent decisions and give informed consent. We therefore consider that the level of protection for children under 16 should be higher than that for those aged from 16 to 18. To differentiate between the protection for these two age groups, we propose that the use, procurement or offer of a person aged from 16 to 18 is an offence if the subject pornography or pornographic performance is a pornographic depiction depicting in a sexual manner or context the genitals or anal region of a person or the breast of a female person. If children under the age of 16 are depicted, even if the depiction only depicts in a sexual manner or context the relevant body parts, it is an offence.’

87 Secretary for Justice v Man Kwong Choi and Secretary for Justice v Ho Yan Kiu 2008 5 HKLRD 519 [25–26].

88 Ibid, [26]. It should be noted that, in this case, the facts were not suggestive of consensual ‘sexting’ offences, but instead, ones involving more obviously exploitative behaviours concerning much younger children.

89 Ibid, [4].

90 AH v State of Florida, 949 So 2d 234 (Fla 1st Dist 2007; 2007 Fla App LEXIS 484). Offence under § 827.071(2), Florida Statutes (2005).

91 Florida Statutes (2005) § 827.071(5).

92 Kimberly W O’Connor and others, ‘Sexting Legislation in the United States and Abroad: A Call for Unity’ (2017) 11(2) International Journal of Cyber Criminology 218, 219.

93 Ibid, 219.

94 Strasburger and others (n 11) 5.

95 Queensland Sentencing Advisory Council, Sentencing Spotlight: Child Exploitation Material Offences (2017) <https://www.sentencingcouncil.qld.gov.au/__data/assets/pdf_file/0010/519535/Sentencing-Spotlight-on-child-exploitation-offences.pdf> accessed 24 August 2020.

96 UK Council for Child Internet Safety, Sexting in Schools and Colleges: Responding to Incidents and Safeguarding Young People (2016) <https://www.safeguardinginschools.co.uk/wp-content/uploads/2016/08/Sexting-in-schools-and-colleges-UKCCIS-August-2016.pdf> accessed 27 July 2020.

97 Ibid, 14.

98 In such cases, schools may take disciplinary action; ibid, 15.

99 Ibid, 14.

100 Gavin Hales, The Police Foundation, Perspectives on Policing: Paper 4. A Sexting Surge or a Conceptual Muddle? The Challenges of Analogue Law and Ambiguous Crime Recording (31 January 2018) 5 <http://www.police-foundation.org.uk/2017/wp-content/uploads/2010/10/perspectives_on_policing_sexting_FINAL.pdf> accessed 24 August 2020.

101 Ibid, 6.

102 Ibid, 3.

103 Ibid, 6. Problematically, from a rehabilitation perspective, the reporting of a sexting allegation, even if disposed of under Outcome 21, could remain in existence as a police record until the subject reaches 100 years of age, and could be requested by a potential employer in the interim; see R (CL) v the Chief Constable of Greater Manchester Police and the Secretary of State for the Home Department [2018] EWHC 3333 (Admin).

104 Ibid, 7, referring to National Police Chiefs’ Council, ‘Police Dealing with Rising Number “Sexting” Cases Involving Children’ (6 November 2017) <https://news.npcc.police.uk/releases/policeresponding-proportionately-to-rising-number-of-sextingincidents> accessed 27 July 2020.

105 Ibid.

106 Hong Kong Law Reform Commission, Review of Substantive Sexual Offences (Report 2019) [3.54]. For brief details on the scheme, see <https://www.police.gov.hk/ppp_en/13_faqs/faq_cri.html> accessed 24 August 2020.

107 Other matters considered are the nature, seriousness, and prevalence of the offence; the offender’s past criminal records; and the attitude of the complainant.

108 The Government of the Hong Kong Special Administrative Region (SAR), ‘Question by the Hon Charles Peter Mok and a Reply by the Secretary for Security, Mr John Lee, in the Legislative Council’ (8 January 2020) <https://www.info.gov.hk/gia/general/2020001/08/P2020010800640.htm> accessed 24 June 2020.

109 John Power, ‘Hong Kong Protests: Did Police Use Israel’s Cellebrite Hacking Tech to Crack Protesters’ Smartphones?’ South China Morning Post (22 January 2020) <https://www.scmp.com/week-asia/politics/article/3047164/hong-kong-protests-did-police-use-israels-cellebrite-hacking> accessed 24 February 2021.

110 [2020] 2 HKLRD 529. For further discussion about this case, see Thomas Yeon and Yuan Shang Mathilda Kwong, ‘Warrantless Searches of a Mobile Phone’s Digital Contents and Privacy Interests in Hong Kong’ (2021) 50(2–3) Common Law World Review 95.

111 Ibid, [103]. Section 50(6) PFO only permits police officers to conduct a warrantless search of mobile phones or their digital contents when exigent circumstances arise.

112 Ibid, [115].

113 Ibid, [106].

114 Ibid.

115 HKSAR v Muhammad Riaz Khan [2012] 15 HKCFAR [20].

116 Lee Chu Ming, Martin, and Others v A Permanent Magistrate, Eastern Magistracy, and Another [2020] HKCFI 2028.

117 Ibid, [122], [126].

118 Ibid, [113].

119 Law Reform Committee (n 1) 73.

120 Security Bureau, Legislative Council, Prevention of Child Pornography Bill SCBR 2/3231/2001 (8 January 2002) <https://www.hkispa.org.hk/publicpapers/childbill.pdf> accessed 27 July 2020.

121 Law Reform Committee (n 1) 139.

122 M Aiken, The Cyber Effect: A Pioneering Cyberpsychologist Explains How Human Behaviour Changes Online (John Murray 2017) 191.

123 Thomas Crofts and Murray Lee, ‘“Sexting”, Children and Child Pornography’ (2013) 35 Sydney Law Review 85.

124 Lords Hansard, 2 June 2003; Col 1104.

125 Here, Gillespie has drawn the distinction between the harm posed by public distribution of the image as compared to the taking and possession of it. In his view, criminalization of these latter acts is a disproportionate response. See A A Gillespie, ‘Adolescents, Sexting and Human Rights’ 13(4) Human Rights Law Review (2013) 623, 641.

126 Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth) <https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4275_ems_ed3ea591-6390-4a0b-ade0-8cc710287ad7/upload_pdf/339085.pdf;fileType=application%2Fpdf> accessed 24 August 2020.

127 Crimes Act 1900 (NSW), S 91HAA. Another example is Tasmania, where it is a defence to certain child-exploitation material offences, where the material shows sexual activity between the accused and an under-18-year-old which is not unlawful, Criminal Code (Tas), S 130E(2). Sexual intercourse with a person under 17 is unlawful; however, consent is a defence if the person is 15 or over and the accused is not more than five years older, or if the person is 12 or over and the accused is not more than three years older, Criminal Code (Tas), S 124.

128 Crimes Act 1900 (NSW) S 91HA.

129 See, e.g. Utah, Utah Code Ann § 76-10-1204.

130 See, e.g. New Jersey, NJ Rev Stat § 2A:4A-71.1.

131 Ibid.

132 See, e.g. Texas Penal Code § 43.261. This provision also includes certain defences to the offence.

133 Maine, 17-A MRS § 283.1A and § 284.1A.

134 Nebraska, NRS § 28.1463.02.

135 Nebraska, NRS § 28.813.01.3.

136 Murray Lee and others, ‘“Let’s Get Sexting”: Risk, Power, Sex and Criminalisation in the Moral Domain’ (2013) 2(1) International Journal of Crime and Justice 35, 45.

137 For discussion, see, e.g. Tim Gregory, ‘Sexting and the Politics of the Image: When the Invisible Becomes Visible in a Consensus Democracy’ (2015) 2(4) Porn Studies 243; Clare McGlynn, Erika Rackley, and Ruth Houghton, ‘Beyond “Revenge Porn”: The Continuum of Image-Based Sexual Abuse’ (2017) 25 Feminist Legal Studies 25; Tyrone Kirchengast and Thomas Crofts, ‘The Legal and Policy Contexts of “Revenge Porn” Criminalisation: The Need for Multiple Approaches’ (2019) 19 Oxford University Commonwealth Law Journal 1.

138 As noted above, the research of McGeeney and Hanson (n 24) found that motivations for sexting include pressure from a friend or partner, and getting back at someone, alongside having fun and flirting.

139 Law Reform Committee (n 1).

140 See, e.g. North Dakota, NDCC § 12.1-17-07.2; Texas Penal Code § 43.261. For discussion, see Strasburger and others (n 12).

141 E.g. Crimes Act 1900 (NSW), S 91R(1); Penal Code (Singapore), S 377BE(2).

142 E.g. Penal Code (Singapore), S 377BD, BE; or must have caused emotional distress or harm: see North Dakota, NDCC § 12.1-17-07.2.

143 Law Reform Commission of Hong Kong, Voyeurism and Non-Consensual Upskirt-Photography, Report (n 8). For discussion of the need to criminalize a broader range of offences in Hong Kong, see T Crofts, ‘Criminalization of Voyeurism and “Upskirt Photography” in Hong Kong: The Need for a Coherent Approach to Image-Based Abuse’ (2020) 8 Chinese Journal of Comparative Law 505.

144 Security Bureau (n 9) [1.07–1.08].

145 Part XIIAA, Ss 159AA–AAO inserted into the Crimes Ordinance (Cap 200).

146 In its 2012 Consultation Paper, the Law Reform Commission had initially proposed that the offence of sexual assault be extended to cover behaviour of a sexual nature which caused the victim ‘fear, degradation or harm’, including upskirt photography: Law Reform Commission of Hong Kong, Rape and Other Non-Consensual Sexual Offences (Consultation Paper, 2012) [6.30]. However, in its 2019 Report, the Law Reform Commission noted that this proposal did not receive community support: Law Reform Commission of Hong Kong, Voyeurism and Non-Consensual Upskirt-Photography (n 8) [42].

147 Crimes Ordinance (Cap 200), S 159AAB.

148 A subject individual is a person ‘whose intimate act, intimate part or intimate image is the subject of a person’s conduct’: Crimes Ordinance (Cap 200), S 159AAF.

149 A person will be held to disregard whether the subject individual consents if they know the subject individual does not consent or they are reckless as to whether the subject individual is consenting: Crimes Ordinance (Cap 200), S 159AAH.

150 Crimes Ordinance (Cap 200), S 159AA.

151 Crimes Ordinance (Cap 200), S 159AA.

152 Crimes Ordinance (Cap 200), S 159AAC.

153 Crimes Ordinance (Cap 200), S 159AAD.

154 Crimes Ordinance (Cap 200), S 159AAE.

155 Ostensibly, in the sense that the consent is factually given but not legally recognized.

156 Crimes Ordinance (Cap 200), S 159AAG.

157 Crimes Ordinance (Cap 200), S 159AAI.

158 It is also acknowledged that even diversionary schemes can have negative impacts on young people.

159 Kelly Tallon and others, ‘New Voices/New Laws: School-Age Young People in New South Wales Speak Out About the Criminal Laws that Apply to Their Online Behaviour’ (National Children’s and Youth Law Centre and Legal Aid NSW 2012) 9 <http://www.lawstuff.org.au/__data/assets/pdf_file/0009/15030/New-Voices-Law-Reform-Report.pdf> accessed 24 August 2020.

160 Richard Ericson, ‘Police as Reproducers of Order’ in Tim Newburn (ed), Policing: Key Readings (Willan, 2005) 215.

161 David Birchall and Jack Burke, ‘Just a Slap on the Wrist? Parental Corporal Punishment of Children and the Defence of Reasonable Chastisement in Hong Kong’ (2020) 50 Hong Kong Law Journal 167, 190, and 191, referring to Stephanos Bibas, who argued that: ‘Rules should be clear, general, stable, announced in advance, applied prospectively and consistently, and capable of being followed.’ See ‘The Need for Prosecutorial Discretion’ (2010) Faculty Scholarship Repository, Paper 1427, 369, 371, and 375 <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2428&context=faculty_scholarship> accessed 24 August 2020. The Law Reform Commission of Hong Kong has also commented on the desirability of introducing guidelines for the exercise of prosecutorial discretion in relation to the criminal liability of young people for engaging in sexual acts with other young people: Review of Substantive Sexual Offences (Report 2019) [3.54].

162 Justice Centre Hong Kong, Joint Civil Society Submission from the Hong Kong UPR Coalition (March 2018) Attachment B Sexuality Education [72] <https://www.justicecentre.org.hk/framework/uploads/2019/09/HKUPRC_Submission_MARCH2018.pdf> accessed 24 August 2020.

163 Research Office, Legislative Council Secretariat, Sexuality Education, INO3/17-18, [1.5] <https://www.gov.hk>1718in03-sexuality-education-20180109-e> accessed 6 January 2020.

164 Ibid, [2.2], [3.3], [3.5], and [3.6], Appendices I-IV at 22.

165 Quoting from the Government of the Hong Kong SAR, LCQ10: Promoting Positive and Healthy Sex Attitudes Among Youngsters (26 April 2017), relating to a question by the Hon Cheung Kwok-kwan and a written reply by the Acting Secretary for Education, Mr Kevin Yeung, at [5]: ‘In response to the rapid societal changes and needs of students, the EDB will continue to strengthen support to schools, such as ongoing development of learning and teaching resources [and] renewal of relevant curricula’. <https://www.info.gov.hk.gia.general.201704>26.P2017042600626> accessed 24 August 2020.

166 Hildie Leung and others, ‘Development of Contextually-Relevant Sexuality Education: Lessons from a Comprehensive Review of Adolescent Sexuality Education Across Cultures’ (2019) 16(4) International Journal of Environmental Research and Public Health 621 [1.4].

167 Aiken (n 122) 190. For further recommendations on how educational leaders should develop policies to educate students, parents, and staff about the impacts of sexting, see Charles Russo, Allan Osbourne, and Kelli Arndt, ‘Cyberbullying and Sexting: Recommendations for School Policy’ (2011) 269 Education Law Reporter 427.

168 Mario Long and Grand H L Cheng, ‘Sext and Gender: Examining Gender Effects on Sexting Based on the Theory of Planned Behaviour’ (2017) 36(7) Behaviour and Information Technology 726.

169 Ibid, 730.

170 Ibid.

171 Ibid, 733.

172 See Hildie Leung and Li Linn, ‘Adult Sexual Risk Behaviour in Hong Kong: Prevalence, Protective Factors, and Sex Education Programs’ (2019) 64 Journal of Adolescent Health 552, 557, in which the authors stress the need to use a culturally appropriate curriculum in order for it to be an effective educational tool, with the contention that Hong Kong is still a relatively conservative jurisdiction as far as the discussion of liberal sexual mores is concerned.

173 Law Reform Committee (n 1) 53. See also, Lee and others (n 136) 45.

174 Crofts and others (n 16).

175 The Scottish Government, Expert Group on Preventing Sexual Offending Involving Children and Young People, Harmful Sexual Behaviour by Children and Young People (January 2020), 64 <https://www.gov.scot/publications/expert-group-preventing-sexual-offending-involving-children-young-people-prevention-responses-harmful-sexual-behaviour-children-young-people> accessed 24 February 2021.

176 Ibid, 65.

177 The Government of the Hong Kong SAR, Labour and Welfare Bureau, Commission on Children: Terms of Reference [4] <https://www.lwb.gov.hk/en/advisory/coc.html> accessed 24 August 2020.

178 Law Reform Committee (n 1) [7.3.1].

179 Home Office, Online Harms White Paper, Consultation Paper (12 February 2020) [2.9] <https://www.gov.uk/government/consultations/online-harms-white-paper/online-harms-white-paper> accessed 24 August 2020.

180 Ibid, [2.10].

181 Ibid, [2.15].

182 Ibid, [2.13].

183 Ibid, [2.16].

184 Commonwealth Parliament of Australia, The Senate Legal and Constitutional Affairs Committee, Phenomenon Colloquially Referred to as ‘Revenge Porn’ (2016) <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Revenge_porn/Report> accessed 24 February 2021.