Lawyers for allegations of revenge porn
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.’
Defendants accused of this kind of behaviour were previously charged under the Malicious Communications Act of 1988 or the Communications Act 2003. However, since CJCA 2015 it is far more likely that those uploading ‘revenge porn’ will be charged under the new law.
‘Revenge porn’ offences are occasionally considered part of a campaign of harassment and so may be charged alongside an offence under the Protection from Harassment Act 1997.
Defences
The CJCA 2015 allows for certain defences for revenge porn which are as follows :
- It is a defence if the defendant can prove that he or she reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime.
- It is a defence if the material is disclosed, in the course of, or with a view to publication of journalistic material and that the defendant reasonably believed that publication is in the public interest.
- The defendant also has a defence if they reasonably believed that the photograph or film had previously been disclosed for reward and that the defendant had no reason to believe that the previous disclosure for reward was made without the consent of the individual.
Sentencing
The offence carries a maximum sentence of two years in custody for the most serious cases but can also be punished by way of a fine or a community order.
Other offences
As society adapts to developments in technology the law must also be reviewed and amended to ensure it remains relevant and addresses new forms of behaviour which had previously not been anticipated when legislation was drafted. This can be illustrated by the creation of new offences in recent years such as upskirting (Voyeurism Act 2019) and sexual communication with a child (Sexual Offences Act 2003.)
The law in this area has developed piecemeal and overlaps exist between different areas such as communication offences, hate crime and the non-consensual taking and sharing of intimate images. This has resulted in holes in the scope of the law and the Law Commission have undertaken a consultation to review and address these gaps.
Disclosing private sexual images with intent to cause distress
The increased use of smart phones, chatrooms and other web based applications has presented everyone with greater opportunity to take photographs, alter images and share them. This means that it is also easier to take and share intimate images/videos which have often been taken in the course of a consensual sexual relationship. Campaign groups and Members of Parliament have raised concerns about the harm caused when these intimate images are later shared with others without the consent of the person in the image.
It is against this background that Section 33 of the Criminal Justice and Courts Act 2015 created an offence of disclosing private sexual images with intent to cause distress to the person depicted and without their consent.
This offence carries a maximum sentence of two years imprisonment and is made more serious if the conduct is intended to maximise distress or humiliation, the images are circulated widely or publically, there is a significant degree of planning or repeated attempted to ensure the images remain available to be viewed.
Subsequent to this offence being created the issue of threatening to disclose images has also been considered as attracting criminal culpability. Campaigners have pushed to have the distressing effect the threat of disclosure can have on a person recognised. This has led to S33 being amended by S69 of the Domestic Abuse Act 2021 which introduces, as of 29th June 2021, a new offence of threatening to disclose a private sexual image.
For this offence to be made out the Prosecution do not have to prove either that the image actually exists or, if an image does exist, that it is a private sexual image. The Crown must prove specific intention to cause distress in issuing the threat, intention cannot be inferred simply because the threat would be likely to cause distress.
The Law Commission’s review is ongoing and its final report is anticipated to be published in 2022.
It will consider anomalies and inconsistencies which currently exist. For example there is currently an offence which specifically deals with upskirting but not with downblousing. Altering an image and sharing it is similarly not currently directly addressed.
It seems likely that further new offences may be introduced to clarify the law and provide more structure in this evolving area of law.
Olliers Solicitors – specialist criminal defence lawyers
Contact us to arrange advise and representation in relation to an allegation of revenge porn.
