Much of what is known about this behaviour is anecdotal and comes from the United States.A recent survey of adults between the ages of 18 and 54 found that 1 in 10 ex-partners have threatened to expose intimate photos of their ex on-line, and according to the survey, these threats have been carried out in 60% of the cases.Young people are increasingly consensually exchanging intimate images, which may later become fodder for humiliating cyberbullying attacks, with these images spreading quickly and often uncontrollably.

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The effect of this distribution is a violation of the depicted person's privacy in relation to images, the distribution of which is likely to be embarrassing, humiliating, harassing, and degrading or to otherwise harm that person.

There is limited data on the extent and the nature of this activity.

The Working Group agrees that a new offence should protect similar privacy interests as the existing offence of voyeurism (i.e., nudity or explicit sexual activity in circumstances that give rise to a reasonable expectation of privacy.

The Working Group discussed whether the definition of "intimate image" should require that the person depicted have a reasonable expectation of privacy in the image, taking into account the circumstances in which the image was made.

Where there is evidence that the accused was motivated by malicious intent, the courts could consider this as an aggravating factor on sentencing.

The Working Group recognizes that it would be inappropriate to criminalize the distribution of photos that are simply embarrassing or unflattering.

Several Australian states have enacted various laws which deal with elements of the non-consensual distribution of intimate images, though many of these offences are extensions of the criminal harassment provisions or voyeurism-type offences.

New Zealand's Law Reform Commission recently recommended amendments to the covert filming provisions of the to criminalize the publication of an intimate image by the person who made the image without consent of the person depicted.

Although existing criminal offences may apply in certain situations, they do not address the identified harm and therefore are not adequately responsive to the non-consensual distribution of intimate images.

The Working Group agrees that there is a gap in the criminal law as it relates to the non-consensual distribution of intimate images.

With respect to young people, an online survey of 1,280 respondents (653 teens aged 13-19 and 627 young adults aged 20-26) in 2008 commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy found that 20% of teens and 33% of young adults had sent nude pictures of themselves via text or email (a practice referred to as "sexting").