Victorian Consolidated Legislation

Summary Offences Act 1966 - SECT 41D

Exceptions to offences

41D. Exceptions to offences



(1) Section 41A or 41B does not apply to an observation or visual capturing
made-

   (a)  with the express or implied consent of the person whose genital or
        anal region is observed or visually captured; or

   (b)  by accessing the Internet or a broadcasting service (within the
        meaning of the Broadcasting Services Act 1992 of the Commonwealth) or
        datacasting service (within the meaning of that Act); or

   (c)  by a law enforcement officer acting reasonably in the performance of
        his or her duty.

(2) Section 41C does not apply to a distribution of an image-

   (a)  for a particular purpose if the person whose genital or anal region is
        visually captured (the subject) has expressly or impliedly consented
        to the distribution of the image for that purpose or a similar
        purpose; or

Example 1 A patient gives consent to doctor A distributing an image of a mole
in her genital region to another doctor for a second opinion. A distribution
by doctor A of the image to a non-medical friend is not covered by the
exception as the purpose of the distribution is different. Example 2 A model
gives consent to a photographer distributing an image to magazine A for a
commercial purpose. A distribution by the photographer of the image to
magazine B is covered by the exception as the purpose of the distribution is
the same-commercial.

   (b)  if-

   (i)  the subject is a child or other person incapable of giving consent;
        and

   (ii) the capturing was not made in contravention of section 41B; and

   (iii) in the particular circumstances, a reasonable person would regard the
        distribution of that image as acceptable; or Example Emailing by a
        person of a photograph of a naked newborn relative to a family member
        or friend may not be an offence against section 41C because of
        paragraph (b).

   (c)  by a law enforcement officer acting reasonably in the performance of
        his or her duty.

Notes 1. Sections 68, 69 and 70 of the Crimes Act 1958 set out offences in
relation to child pornography. 2. Part 6 of the
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995
sets out offences in relation to the distribution of objectionable material by
an on-line information service.