New laws to tackle revenge pornPosted on

In April this year, new legislation came into force criminalising “revenge porn” (the sharing of sexual photographs or videos without the subject’s consent).

In recent years, we have seen a huge rise in the instances of revenge porn, with it being increasingly easier to capture intimate moments on camera and to share them via social media. Often, the scenarios involve an ex-partner uploading intimate sexual images of the victim to cause humiliation.

Discovering that intimate photographs or films of yourself are available for everyone to see, including your friends, family and colleagues, can be hugely damaging and, indeed, life changing. Tulisa Contostavlos discovered this in 2012 (she was an X Factor judge at the time) when her ex boyfriend released a sex tape of her giving him oral sex.

This rise in people sharing or threatening to share sexual images, without the subject’s consent, has been reflected in the courts’ workload, with the fate of sexual images and films increasingly being decided by the courts. For example, in March this year, the High Court had to consider a case involving a premier league footballer who sent a woman sexually explicit pictures and video clips of his body. The footballer then sought an order restraining publication of, among other things, the visual material that he had sent the woman in question.

The new offence

It is now a criminal offence under the Criminal Justice and Courts Act 2015 for a person to disclose a private sexual photograph or film if the disclosure is made:

  • without the consent of an individual who appears in the photograph or film; and
  • with the intention of causing that individual distress.

The offence is punishable by up to two years in prison and/or a fine.

The offence will apply to any kind of disclosure of private sexual photographs or films. This could include uploading images on the internet, sharing by text or e mail, or showing someone a physical image. The offence applies equally online and offline and to images which are shared by electronic means or in a hard copy.

The defences

Various defences may be available to a defendant. The key defences are as follows:

  • The defendant made the disclosure in the course of, or with a view to, the publication of journalistic material in the public where publication would be in the public interest;
  • The defendant reasonably believed that the material was previously disclosed for reward and had no reason to believe that the victim did not consent (such as commercial pornography).

The first defence will apply to journalists and their sources. It would protect disclosure in a publication and also the source’s disclosure to the journalist with a view to publication provided that there is a public interest in the publication. The Government’s explanatory notes that accompany the legislation state that the defendant will have to show that he or she had a reasonable belief in the circumstances that there was a “legitimate need” for the public to have access to the journalistic material. The Government explains the need for the defence saying that “there will, occasionally, be circumstances where such pictures will evidence a story of genuine public interest. It is not our intention to fetter the freedom of the press to publish such stories.”

In practical terms, it is going to be very rare that there will be a public interest in the publication of a sexual image/film. Especially if the point could be made without the publication of an intimate photograph/film.

The second defence will apply where, for example, a defendant had a reasonable belief that the photograph or film had previously been published on a commercial basis, for example he or she had seen it on a pornographic website. The defendant also has to show that he or she had no reason to believe that the victim did not consent to this previous disclosure.

Intention to cause distress

The further down the chain an individual is from the original disclosure, the harder it is likely to be to establish the offence. There has to be a clear intention to cause distress which becomes less likely, the more removed the defendant is from the subject of the images/films.

The Act makes it clear that there will be no assumption of an intention to cause distress. A person charged with an offence is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because “distress” was a natural and probable consequence of the disclosure. The person charged must have set out with the aim of upsetting the subject.

Therefore, if someone retweets or forwards an image without consent from the subject, they will not be criminally liable unless they intended distress to the subject. The more removed the person is from the subject, the harder it is likely to be to demonstrate an intention to distress.

It will be interesting to see how strictly this intention is interpreted. What about a Max Mosley type of situation where a journalist’s main motivation for publication is to satisfy public appetite? While a journalist will not have the requisite intention just because it would be a natural and probable consequence that the subject would be distressed, what if the journalist has considered the possible distress and has gone ahead and published anyway? In these sorts of situations, it is possible to have more than one intention.

What sort of images/films are caught?

A photograph or film is defined as being “private” where it shows something that is “not of a kind ordinarily seen in public”. It is unlikely then that kissing or an embrace will be caught. We are talking about unclothed people or genuinely sexual acts.

A photograph or film will be considered “sexual” if it shows genitals or the public area; something that a reasonable person would consider sexual.

The legislation caters for editing of photographs and film. The offence will still apply to an image which appears photographic and originated from a photograph or film, even if the original has been altered in some way (such as combining images or changing the colours).

But the offence will not apply if it is only because of the alteration or combination that the film or photograph has become private and sexual or if the intended victim is only depicted in a sexual way as a result of the alteration or combination. For example, pasting an image of the victim onto a sexual photograph of another person will not be caught.

What next?

Once there has been a high profile prosecution or two, this new legislation may well start to deter those considering sharing sexual images/films without the subject’s consent.

Until public awareness is improved, the legislation will assist most in the aftermath of the publication of revenge porn, rather than acting as an immediate deterrent.

In the meantime, if a potential victim acts fast enough, it remains an option for them to seek a court order restraining publication of sexual images and film. In the majority of cases, the images/films will amount to private information, given their sexual and intimate nature and the lack of consent to publication and there will be no good reason for publication. Affected individuals have long had civil rights to sue and/or injunct for misuse of private information. The added criminal legislation increases the protection for victims.

 

 

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