‘Revenge porn’, the term coined for the unauthorised sharing of private sexual photographs or videos, often carried out by spurned lovers over the medium of the Internet, has been criminalised in England and Wales under the Criminal Justice and Courts Act 2015 (‘the Act’) which received Royal Assent on 12 February 2015.
When the provisions come into force it will be an offence, under section 33(1) of the Act to ‘disclose a private sexual photograph or film if the disclosure is made (a) without the consent of the individual who appears, and (b) with the intention of causing that individual distress’.
A person discloses the photograph or film if they make it available to another person ‘by any means’ (section 34(2)). The Act therefore covers the use of email, text and instant message services such as WhatsApp and SnapChat, social media sites such as Facebook and Twitter, and wider publication on the Internet, together with traditional ‘offline’ dissemination. ‘Private’ is defined in this context by section 35 as of a kind that is not ordinarily seen by the public, whilst ‘sexual’ includes not only exposure of the genitals, but anything that a reasonable person would consider to be sexual because of its nature or context. ‘Photograph or film’ includes images that have been doctored (section 34(5)).
Examples of the kinds of alterations that perpetrators sometimes make are adding supposedly humorous features, distorting body parts, and making it look as though a person is engaged in pornography. However, the image will not be sexual if it is only rendered such by virtue of the alteration (section 35(5)). Those convicted could face a sentence of up to two years imprisonment (section 33(9)).
The intention to cause distress will have to be proven, and it will not be assumed merely because that was a natural or probable consequence of the disclosure (section 33(8)). In addition, the Act provides that a person will have a defence if he or she can show one of the following specific circumstances: -
- that it was reasonably necessary to disclose the image for the purposes of preventing, detecting or investigating crime (section 33(3)).
- that the disclosure was made with a view to publication of journalistic material and that he or she reasonably believed that the publication would be in the public interest (section 33(4)).
- that he or she reasonably believed that the photograph or film had previously been disclosed for reward either by the individual depicted or by another, and he or she had no reason to believe that the disclosure was made without the consent of the depicted individual (section 33(5)).
Brett Wilson says:
Whilst a number of existing offences have previously been used to prosecute ‘revenge porn’, none were specific or broad enough to cover the multitude of different circumstances in which victims found themselves. Further, it is apparent that this type of behaviour has been on the rise, particularly amongst teenagers and young adults, and it must be hoped that the creation of a specific offence may bring greater public awareness and some deterrent effect (the Ministry of Justice has also launched the#NoToRevengePorn / BewareB4YouShare campaigns). For both those reasons, the creation of this new offence (amongst the proliferation of new criminal offences over the past two decades), must surely be welcomed.
Looking beyond that, the mental element of the offence and the specific defences available, both warrant some consideration.
The mental element
The mental element of the offence as drafted as specific intent – the defendant must intend to cause distress or be “subjectively reckless” (being aware that distress would be caused but not caring and going ahead anyway). It is not enough to prove “objective recklessness” – where the defendant “ought to have known” the likely effect of the disclosure.
Whilst many incidents of ‘revenge porn’ are doubtless intended to embarrass and humiliate the victim, some may arise because the perpetrator believes it to be amusing or is trying to impress their friends, without giving any thought to the potential impact on the person concerned. Are such individuals to escape punishment?
As drafted, the law may also restrict the ability to prosecute ‘onward’ publishers, whether commercial entities or lay individuals. It appears that this issue was at least partially considered in the parliamentary debates, but that the drafting reflects the Government’s desire to tackle the specific mischief of ‘revenge’, hence the mental element and the focus on the initial disclosure.
The defence concerning the prevention, detection or investigation of crime may at first seem incongruous, but is presumably intended to protect those cooperating with law enforcement officials (for example, a person accused or witness to a crime offering images to the police) or the officials themselves.
The ‘journalists’ defence’ is more interesting. As lawyers know, the question of what is in the ‘public interest’, as opposed to being of interest to the public, is a thorny one. There is no statutory definition of the term. This law might give pause for thought to individual journalists who might be about to publish photographs of, for example, a celebrity. Whilst their employers may be able to indemnify them against privacy claims, it cannot insulate them from criminal charges. In anticipation of this fear, the Act states at section 33(6) that a person need only provide sufficient evidence towards this defence to raise an issue, and the Crown must then prove the contrary beyond reasonable doubt. It was stated in the Lords debate of 20 October 2014 that this ‘stringent test’ was necessary to ensure that the offence did not inappropriately interfere with press freedom, although on close examination, it is difficult to see how this alters the usual balance of proof in criminal proceedings.
The reasonable belief that material was previously published for reward is presumably designed to protect those distributing what they believe to be commercial pornography. In the explanatory notes that accompanied the Lords amendments, an example was given of an individual who held a reasonable belief that the photograph had previously been published on a commercial basis because he or she had seen it in a magazine. However, whilst it might seem entirely appropriate that an individual sharing a video that he or she believes to be ‘legitimate’ pornography, be protected by the Act, surely that individual would be spared prosecution in any event, as they could not have been intending to cause distress to the person concerned.
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