Commentary on Sections Part 2: Notification and Orders Section 124: Section 123: interpretation.
254.The definition of “image” at subsection (4) includes photographs, cartoon strips, email attachments and drawings. The use of the words “but regardless of any person’s purpose” in subsections (5) to (7) means that an activity, or communication, or image, will only be “sexual” for the purposes of section 123 if a reasonable person, purely from the nature and circumstances of the activity, communication or image, would consider it to be sexual, without having to enquire into the motive behind it. This catches activities or communications or images that, in all the circumstances, are explicitly or overtly sexual, for example a pornographic film or a description of oral sex. However, where for example a double entendre is used in communication, the reasonable person might have to consider the speaker’s motive before he could decide whether the communication was sexual. So the use of the double entendre would not be “sexual” communication, for the purposes of section 123, as the term is defined in subsection (6).