Lawyers for allegations of revenge porn and disclosing intimate photographs
Many people are aware of the concept of revenge porn. The typical situation would be an individual uploading or distributing private sexual images of a former partner to get ‘revenge’ for whatever reason.
The increasing use of the internet and smart phones in the last decade saw a rise in this kind of behaviour and so in April 2015 the Criminal Justice and Courts Act (CJCA) 2015 created the specific offence of ‘revenge porn’. It became an offence to ‘disclose private sexual photographs and films; without the permission of the individual who appears in the photograph or film; with intent to cause distress.’
However, the offence of ‘revenge porn’ (disclosing or threatening to disclose private sexual photographs and films with intent to cause distress) was repealed by virtue of the Online Safety Act 2023 which came into force on 31st January 2024 as new offences were created to try and more adequately deal with the rise of such offences.
The old section 33 CJCA 2015 offence remains available for offences committed prior to 31 January 2024. For offences committed after 31 January 2024 four new offences have been created. The new offences are intended to address activities including so-called deep fake images, and down blousing.
Old Revenge Pornography offence: Disclosing, or Threatening to Disclose, Private Sexual Photographs or Film with Intent to Cause Distress under Section 33 Criminal Justice and Courts Act 2015
The old revenge porn offence remains available for offences committed on or after 13 April 2015 and prior to 31 January 2024. Initially limited to offences of ‘disclosing’, the offence was extended from 29 June 2021 to include ‘threatening’ to disclose private photos/film.
The offence is committed where:
- a person discloses, or threatens to disclose, a private sexual photograph or film in which another individual appears,
- by so doing, the person intends to cause distress to that individual, and
- the disclosure is, or would be, made without the consent of that individual.
No offence is committed if the photo/film is disclosed to the person who appears in it. Note also that a person charged with an offence under this section is not to be taken to have intended to cause distress by disclosing, or threatening to disclose, a photograph or film merely because that was a natural and probable consequence of the disclosure or threat.
The offence applies to any form of disclosure of private sexual photographs or films, for example, by uploading image, sharing by text/e-mail, or by physically showing someone.
The offence applies only where a photograph or film is of a private sexual nature originally. The offence is not established if a film or photograph has become private and sexual only due to alteration or combination, or if the intended victim is depicted in a sexual way only due to an alteration or combination.
What defence are available to revenge porn offences?
Defences apply where:
- the defendant reasonably believed that the disclosure was necessary for the prevention, detection, or investigation of crime;
- a person discloses material in the course of or with a view to the publication of journalistic material so long as the person concerned reasonably believed that the publication in question was or 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 previous disclosure for reward was made without the consent of the individual
What constitutes revenge porn?
Essentially, the person depicted in the film or photograph must not have wanted that to be shared. It is also a crime to threaten to share this material.
If there was no intent to cause distress, for example the person sharing the image just thought it was funny, then the offence will not be committed for the old revenge porn offence.
The content being shared must be of a sexual nature and private, so not something ordinarily seen by the public.
New revenge porn and disclosing intimate photographs offences
Sharing Intimate Photographs or Film – Section 66B (1) – (3) Sexual Offences Act 2003
The offences of sharing intimate photographs/film are committed when an offender [A] intentionally shares a photo or film which shows, or appears to show, another person [B] in an intimate state, and:
- section 66B (1) Sexual Offences Act 2003: B does not consent to the sharing of the photograph or film, and A does not reasonably believe that B consents; or
- section 66B (2) Sexual Offences Act 2003: A does so with the intention of causing B alarm, distress or humiliation, and B does not consent to the sharing of the photograph or film; or
- section 66B (3) Sexual Offences Act 2003: A does so for the purpose of A or another person obtaining sexual gratification, B does not consent to the sharing of the photograph or film, and A does not reasonably believe that B consents.
In the absence of an identified victim, the prosecution will consider a whether lack of consent may be inferred depending on the evidence in the case.
Defences to disclosing intimate photographs
There are a number of defences available where:
- the photograph or film was taken in a place to which the public had access; that B had no expectation of privacy; and, B was (or A believed B was) in an intimate state voluntarily;
- A reasonably believes that the photograph or film had been previously publicly shared, and B had (or A reasonably believes that B had) consented to the previous sharing.
Further exceptions to 66B (1) SOA 2003 offence where:
- B is a person under 16; B lacks, or A reasonably believes that B lacks, capacity to consent to the sharing of the photograph or film; and, the photograph or film is shared either with a healthcare professional acting in that capacity, or otherwise in connection with the care or treatment of B by a healthcare professional
- a photograph or film which shows, or appears to show, a child in an intimate state, is of a kind ordinarily shared between family and friends
Could I go to prison for disclosing intimate photographs?
These new offences are ‘’either’ way offences. This means they can be dealt with in the Magistrates’ Court or the Crown Court.
They carry a maximum penalty of up to 2 years’ imprisonment or an unlimited fine. However, this does not automatically mean that an individual would go to prison. A court could choose to sentence an individual for revenge porn with a community penalty instead or sometimes a suspended sentence.
A person convicted of revenge porn may also become subject to notification requirements (known as the ‘Sex Offender’s Register).
Threatening to Share Intimate Photographs or Film – Section 66B (4) Sexual Offences Act 2003:
A new offence of threatening to share an intimate photograph or film has also been created.
The offence is committed where an offender threatens to share a photograph or film which shows (or appears to show) another person (B) in an intimate state; and, the offender does so:
- with the intention that B or another person who knows B will fear that the threat will be carried out, or
- being reckless as to whether B or another person who knows B will fear that the threat will be carried out.
Where a person is charged with this offence, it is not necessary for the prosecution to prove that the photograph or film mentioned in the threat exists; or if it does exist, that it is in fact a photograph or film which shows or appears to show a person in an intimate state.
Defences to threatening to disclose intimate photographs
A defence applies if the person would not commit an offence under section 66B(1), (2) or (3) Sexual Offences Act 2003 by sharing the photograph or film in the circumstances conveyed by the threat.
What does ‘intimate state’ mean?
An intimate state is defined as a photograph or film that shows or appears to show: a person engaging in an act which a reasonable person would consider to be a sexual act; a person is doing something which a reasonable person would consider to be sexual; all or part of a person’s exposed genitals, buttocks or breasts; a person in an act of urination or defecation; or, a person carrying out an act of personal care associated with that person’s urination, defecation or genital or anal discharge.
There is an exception that a photograph or film does not fall within the definition of ‘intimate state’ if it shows or appears to show something (other than breastfeeding) that is of a kind ordinarily seen in public. The question of whether a photo or film shows something ‘of a kind ordinarily seen in public’ will be a matter of fact and degree in each case.
Are photographs of breastfeeding considered to be of an ‘intimate state’?
Photographs of breastfeeding including the rearranging of clothing in the course of preparing to breastfeed or having just finished breastfeeding) will constitute images of an ‘intimate state’ without considering whether they are ‘of a kind ordinarily seen in public’.
How can Olliers help?
At the investigation stage, we can communicate with the police on your behalf. We can prepare representations in relation to either mitigation if the offence is admitted, or setting out your case if the offence is denied. Read more about our pre-charge investigation work here.
If you are charged with this offence, we can represent you at court, with one of our specialist solicitors presenting your case. We will advise you on the strength of the evidence and the sentencing guidelines in the context of your case. If you are entering a guilty plea, we will do our very best to ensure you receive the lowest sentence possible. If you are entering a not guilty plea, we will put forward your case to the court, ensuring you have the best chance possible of the desired outcome.
Need a solicitor for a revenge porn allegation?
Contact Olliers to arrange advise and representation in relation to an allegation of revenge porn or disclosing intimate photographs by completing the form below, telephoning 0161 8341515 or by emailing info@olliers.com.
