An Introduction to English laws tackling revenge pornography – Colette Allen

As the UK moved online in response to the COVID-19 pandemic, reports of image-based abuse – ‘revenge porn’ – doubled. One reason for the increase is that the national lockdown pushed dating lives online, and the sharing of sexual images became one of the few ways to show intimacy. Disclosing, or threatening to disclose, intimate images has a massive psychological toll on victims, and is therefore an effective means of exerting control. Financial pressure, a surge in domestic violence, and relationship breakdowns have contributed to the rise of reported cases.

Too often, the victim is blamed when their image ends up online. This response disregards the victim’s right to privacy and denies them of their sexuality. Most would agree that a person’s consent to have sex with another does not amount to consent to sleep with all of his/her friends – but that is the very logic of those who say individuals ‘should have been more careful’ when their image is disclosed.

If you are a victim of revenge porn, the law can help you regain control and achieve justice.

The uploading of sexual or intimate images online, without the consent of the individual pictured, and with the intention to cause the victim humiliation or embarrassment, is a criminal offence in England and Wales.

The relevant law differs depending on whether or not the victim is over 18 years of age.

Section 33 of the Criminal Justice and Courts Act 2015 (‘CJCA 2015′) applies to adult victims and establishes a maximum sentence of 2 years’ imprisonment following conviction.

For s.33 CJCA 2015 to apply, the image(s) must be private and sexual. Certain parts of the body, like exposed genitals or pubic area, are considered inherently private for the purposes of the offence. Posing in a sexually provocative way will be regarded as private if the image depicts something that would not ordinarily be seen in public.

The victim must show that the reason, or one of the reasons, that their intimate image was shared without their consent was to cause the victim distress (the ‘distress element’). Without proving this, a victim will not be able to secure a conviction against the defendant. The distress element is a distinct part of the trial that will require its own evidence. It is not enough that distress is or would be a natural consequence of the disclosure.

Doctored and computer-generated images, also known as ‘deep fakes’, are not covered by the CJCA 2015. A victim who has had an innocent image transposed onto a pornographic photograph or film does not, unfortunately, have any specific law to draw on. Victims in this scenario should, however, discuss with their solicitor the possibility of securing a conviction under section 1 of the Malicious Communications Act 1988 and/or section 127 of the Communications Act 2003. Victims pursuing this route will still have to find evidence for the distress element in order to secure a conviction, as both s.1 and s.127 require that the message be sent to cause distress or anxiety, or be of a menacing character, respectively.

It is not guaranteed that a victim of revenge porn will be able to secure legal aid funding, but this is something you should ask your solicitor.

If you are a victim of revenge porn, the law can help you regain control and achieve justice.

Defences

It is a complete defense if the defendant reasonably believed that the disclosure was necessary for the investigation, prevention or detection of crime (s.33(3) CJCA 2015), or if the image is disclosed by a journalist who reasonably believes that publication is in the public interest (s.33(4)). A journalist relying on the s.33(4) defense will have to show that there was a legitimate need to publish the photograph or film that goes to the value of a story on an important matter. ‘Public interest’ in this context is not simply something with which the journalist believes the public will be interested.

It is a defense if the defendant believed that the image(s) had previously been made public for financial purposes, i.e. commercial pornography (s.33(5) CJCA 2015). However, a defendant will not be able to rely on s.33(5) if they had reason to believe that the victim had not consented to prior release.

Anyone who forwards on the image(s) without the victim’s consent is only guilty of a s.33 offence if they do so with the intention to cause the victim distress. Re-sending the image(s) as a joke or for sexual gratification will not amount to an offence merely because distress was a natural consequence of their actions (s.33(8)).

Children 

Possessing, taking, distributing or publishing sexual images of individuals under the age of 18 are offences under section 1 of the Protection of Children Act 1978 and section 160 of the Criminal Justice Act 1988. If you are under the age of 18 and your image has appeared online, the process is much simpler than if you were an adult. There is no need to show a distress element on behalf of the defendant.

Parents who have been made aware that their children have shared or have been sent sexual images should be aware that Crown Prosecution Service Guidelines on revenge pornography makes clear that consensual ‘sexting’ between minors of a similar age is not to be treated as an offence. Where there is evidence of grooming, harassment or exploitation then it will be treated as a criminal matter.

Websites

The CJCA 2015 makes it possible for the website operator who hosts the site on which an intimate image was illegally shared to be liable, but only when the operator has actively participated in the disclosure, or failed to remove the material once they have been made aware that it is criminal in nature. In reality, most social media sites will be compliant in removing such material on request.

If any of the matters discussed in this article affect you, visit https://revengepornhelpline.org.uk


Colette Allen has hosted “Newscast’” on The Media Law Podcast with Dr Thomas Bennett and Professor Paul Wragg since 2018. She has recently finished the BTC at The Inns of Court College of Advocacy and will be starting a MSc in the Social Sciences of the Internet at the University of Oxford in October 2021.

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