News: Government announces new “revenge porn” legislation – Alexia Bedat

Revenge porn – the distribution of a private sexual image of someone without their consent and with the intention of causing them distress – will become a specific offence under the Criminal Justice and Courts Bill (“the Bill”), currently going through Parliament.

The legislation follows a call by former Culture Secretary Maria Miller in July 2014 to tackle the “appalling practice”. Victims will be able to report offences to the police for investigation, who will in turn work with the CPS towards prosecution in appropriate cases.

Justice Secretary Chris Grayling commented:

“The fact that there are individuals who are cruelly distributing intimate pictures of their former partners without their consent is almost beyond belief. We want those who fall victim to this type of disgusting behaviour to known that we are on their side and will do everything we can to bring offenders to justice. That is why we will change the law and make it absolutely clear to those who act in this way that they could face prison”.

The new offence

In a press release published on 12 October 2014, the Government announced that the legislation will:

• Apply to images shared both online and offline. This means that images posted on social networking websites such as Facebook and Twitter, as well as those sent by text message will be caught by the offence.
• Cover the sharing of such images by email or on a website, but also the physical distribution of images.
• Apply to photographs or films which show people engaged in sexual activity or with their genitals exposed, where what is shown would not usually be seen by the public.
• Carry a maximum penalty of two years in prison.
• Come into force alongside a number of measures in the Bill designed to reinforce sentencing powers.

Although the exact form of the offence is not yet available, a few preliminary points of interest may be made:

Reasonable expectation of privacy

In the amendment to the Bill suggested by Liberal Democrat Peers Lord Mark and Baroness Grender in July 2014, the offence would only be committed where a reasonable expectation of privacy existed at the time the photographs were taken. It is not clear yet whether such a requirement will be expressly included in the new offence. Looking at the description available so far however – the distribution of a private sexual image of someone without their consent and with the intention of causing them distress –such a requirement is likely to be part and parcel of establishing that a sexual image was “private” in the first place.

Specific intent requirement

The offence in the UK will require an intent on behalf of the defendant to cause the victim distress. In Canada, proof of specific intent was rejected as being too onerous on the claimant during working group consultations on the Protecting Canadians from Online Crime Act (known as Bill C-13), which criminalises the sharing of sexual images without the depicted person’s consent. Whether this concern will translate in practice in the UK remains to be seen. It is conceivable, however, that intent to cause the victim distress ought to and will be readily inferred from a defendant’s deliberate or reckless distribution of private sexual images.

The “selfie”

California, the first state along with New Jersey, to enact specific criminal offences for revenge porn, saw its effort criticised for failing to address the “selfie” situation (i.e. where the victim takes the photograph or makes the recording him or herself). The Californian legislation provides it is “disorderly conduct” for a defendant to take intimate and confidential recordings, such as photographs and videos, and to distribute these intentionally to cause serious emotional distress to the victim. The English Government has seemingly avoided this pitfall as the offence applies to the distribution rather than the taking and distribution of private sexual images: a welcome result in light of statistics suggesting that “selfies” make up 80% of “revenge porn” cases.

A comparatively low penalty

The envisaged maximum penalty of two years imprisonment is lenient when compared to similar legislations around the world: with up to five years in both Canada and Israel and seven years in the Philippines.

A positive development

In July 2014, the House of Lords Communications Committee concluded in its report (29 July 2014) that legislation currently in existence, along with the guidelines for applying it, were enough to ensure that criminal offences committed using social media could be adequately protected.

A specific revenge porn offence is, however, to be welcome. The reasons for this are threefold.

First, the current legislative framework, although extensive, is not sufficiently tailored to tackle revenge porn adequately. From a criminal perspective, both the Communications Act 2003 (section 127) and the Malicious Communications Act 1988 require the content sent to be “indecent” or “grossly offensive’. The Director of Public Prosecution’s guidance on the prosecution of offences relating to obscene publications itself provides that ordinary images of consensual acts (i.e. the very type of photographs at issue in revenge porn) are not considered obscene. It is therefore unclear when such statutes can actually be used by victims of revenge porn. The Protection from Harassment Act 1997 is also limited, coming in aid only where a victim is able to establish a course of conduct, for which conduct on at least two occasions is needed (i.e. the posting of one photograph does not suffice). In any event, criminal remedies appear to be seldom used. Figures compiled by eight police forces reveal that out of 149 allegations of revenge porn made in the past two and a half years, only six resulted in police action. As for civil remedies, copyright law may prove to be a solution, but only where the picture has ben taken by the victim herself. Alternatively, injunctive relief may be sought to prevent the further dissemination of photographs. Civil remedies, however, are costly and not accessible to all.

Second, the benefit of remedial action will, in most cases, pale in comparison to the devastating effect of publication of intimate sexual photographs on those concerned. In some cases, such action may not even be possible where the image has been published on a website hosted outside of the UK. A culture shift, whereby revenge porn is perceived as a clear crime punishable by imprisonment, as opposed to a civil wrong, is necessary and arguably, overdue. This shift in perception, will, ideally, be accompanied by greater education on the perils of the internet, especially among children and teenagers.

Third, recent events suggest that the time is ripe for the UK to join the effort to combat the rise of intimate photographs being circulated without consent. The 2014 celebrity photo leaks and recent publication of up to 200,000 Snapchat videos and pictures put into sharp focus the illusion that is privacy on the internet and the importance of having targeted remedies available.

For further details on revenge porn generally and legislation enacted by other countries, please see previous Inforrm posts here and here.

Alexia Bedat is a barrister, studying for the New York Bar, with a special interest in media law.