The Author

Kate Parker
Kate Parker
2014

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Welcome to the 5PB Blog where you can find comments and thoughts on current legal topics.

‘Revenge porn’ law: a year’s reflection

Origin

Section 33 of the Criminal Justice and Courts Act 2015 - colloquially, ‘revenge porn’ law - came into force on 13th April 2015. Unlike the resuscitation of existing laws to tackle modern phenomena (such as the application of section 1 of the Protection of Children Act 1978 to criminalise ‘sexting’), section 33 is a new provision spearheaded by campaign groups and mainstream media to target an increasing number of individuals posting explicit images of former partners online without their consent and with the intention to publicly humiliate.

Originally, neither the CPS nor the House of Commons endorsed a legislative change: it was only following an Early Day Motion that the House of Lords gave statutory footing to public concern. Once created, the ‘revenge porn’ law dominated headlines. The government coincided its enactment with the launch of its anti-revenge porn Twitter campaign (tagline: ‘BE AWARE B4 YOU SHARE’) and a revenge porn helpline was established, receiving over 1800 calls in its first six months. 

Today

A year down the line and the media fanfare has quietened somewhat. In its place is a growing concern from both the public and practitioners that section 33 is proving to be an ineffective prosecutorial tool. A recent Freedom of Information request from the BBC concerning the charging of section 33 across 31 different police forces between April 2015 - December 2015 revealed that only 11% of cases resulted in a charge. Individuals in a further 7% of cases were cautioned and a further 5% were disposed of by way of a police-issued ‘community resolution’. Of the remaining 77%, no further action has been taken in 61% of cases. These statistics were recently thrown into sharp relief with news earlier this month that a 36-year-old man from Eastbourne received a caution for one section 33 offence and three offences under section 127 of the Communications Act 2003 (which criminalises the sending of online messages that are ‘grossly offensive or of an indecent, obscene or menacing character’). His behaviour concerned four women and one 15-year-old girl over a period of five months. Add to that the official CPS guidelines encouraging police and prosecutors to consider alternative charging options such as harassment where a ‘course of conduct’ is evident, (despite the lower sentencing range available) and it begs the question: what is the problem with section 33?

The limitations of section 33

The provision reads as follows:

(1)    It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made -

(a)    without the consent of an individual who appears in the photograph or film, and 

(b) with the intention of causing that individual distress

In the absence of a ‘course of conduct’, the closest offences to section 33 are found under section 1 of the Malicious Communications Act 1988[1] and section 127 of the Communications Act 2003[2]. However, section 33 marks a shift in focus from the content of the communication to the consent of the subject, albeit still coupled to the intent of the sender. The mental element is narrowed. Distress alone must be caused, whereas section 1 not only widens the ambit of the recipient’s feelings but the number of recipients able to feel them (whereas section 127 dispenses with intent entirely). Equally, the image (as opposed to the message/communication under sections 1 and 127) can only trigger section 33 if it is of a ‘private sexual’ nature. Helpfully, ‘private’ is defined as ‘something […] not of a kind ordinarily seen in public’. ‘Sexual’ is defined as follows:

(a)    it shows all or part of an individual's exposed genitals or pubic area,

(b)    it shows something that a reasonable person would consider to be sexual because of its nature, or

(c)    its content, taken as a whole, is such that a reasonable person would consider it to be sexual.

This marks a departure from the definition of ‘sexual’ under section 78 of the Sexual Offences Act 2003, and is an arguably higher threshold than ‘indecent’ under the communication offences. ‘Indecent’ has long been held to possess its ordinary meaning: R v Kirk [2006] EWCA Crim 725. It is wholly conceivable that a private image posted online is considered indecent without falling foul of this three-pronged definition: a topless female sunbather, for example.

The drafting contains further caveats. Section 33 is not engaged where an individual manipulates the image such that the alteration itself is responsible for making the image private and sexual. Perpetrators may use sophisticated photoshop software to transpose an individual’s face onto a pornstar’s body (as happened to the 15-year-old in the Eastbourne case) and thereby victimise those who would never have consensually engaged in any form of sexual photo-taking in the first place. Equally, under section 33(2) ‘it is not an offence […] for the person to disclose the photograph or film to the individual mentioned in subsection 1’. Someone who threatens the subject of an explicit image with its publication would not face criminal sanction under section 33 absent actual publication, despite fully intending the subject’s psychological torture. Such conduct might constitute blackmail under section 21 of the Theft Act 1968, provided an intention to gain or to cause loss to another is identified (i.e., demands for cash to prevent publication). Where distress is caused, a conviction is not guaranteed if it is only intended obliquely. Under section 33(8):

A person charged with an offence under this section is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure.

Someone who discloses explicit imagery of an individual in order to affect a third party’s perception of them (i..e, to counter the squeaky clean impression given by a politician, or to make an employer think twice about hiring a particular interviewee) may also evade the clutches of ‘revenge porn’ law.

Section 33 creates three statutory defences under subsections 3-5: necessary disclosure for the purposes of preventing, detecting or investigating crime, disclosure in the course of (or with a view to) journalistic publication that is in the public interest, and disclosure where the discloser reasonably believes that the image was previously consensually disclosed for reward. There are no statutory defences to similar behaviour under either sections 1 or 127. Further, the limited mens rea of the ‘revenge porn’ offence invites the dubious ‘it was only a laugh’ defence, potentially exonerating the perpetrator who happens to caption their image ‘lol’.       

Alternative laws

If ‘revenge porn’ law has limited practical application and even less success, was the demand for it inappropriate? Does public perception of the ingredients of ‘revenge porn’ sit squarely within existing laws? Alongside sections 1 and 127, section 2 of the Protection from Harassment Act 1997, section 21 of the Theft Act 1968 (blackmail), and section 1 of the Protection of Children Act 1978 have been touted as existing safeguards against ‘revenge porn’. Where the publication of such content goes so far as to incite sexual activity, the Sexual Offences Act 2003 is engaged. But alternatives have their shortcomings.

Section 1 of the Protection of Children Act 1978 is strict and far-reaching: its purpose is to criminalise child pornography. Nevertheless, as its statutory title suggests, it only applies where the victim is under 18. A harassment charge must evidence a ‘course of conduct’. An anomalous instance of ‘revenge porn’ would not engage this offence. Ironically, where a course of conduct is established, the maximum sentence is 18 months less than the maximum sentence under section 33 (2 years’ imprisonment). A blackmail charge is the most punitive alternative, with a maximum sentence of 14 years’ imprisonment. However, an intention to make a gain for oneself/another or to cause loss to another must be evidenced. Under section 34(2)(a) of the Theft Act, ‘gain’ and ‘loss’ relate to money or other property. Absent such demands, and a blackmail charge is inappropriate. Of course, the legislative focus of a blackmail offence is less the means by which a gain/loss is made (here, the act of ‘revenge porn’) and more the fact that a gain/loss was intended. A blackmail charge may be legally accurate where the perpetrator demands £50 for the removal of an explicit online image. But it sits awkwardly where the financial loss is utterly immaterial to the victim: as far as they are concerned, the crime against them is the humiliation of having the image published in the first place.

Both section 1 and section 127 are communication offences, requiring the sending of a message over an electronic communications network: the physical act of showing an image to another would not suffice. Whereas section 1 criminalises any indecent ‘communication […] that is in electronic form’ , it is debatable whether the wording of section 127 - ‘a message or other matter’ - extends to images. This is particularly so in light of DPP v Collins [2006] UKHL 40: ‘it is plain from the terms of section 127(1)(a), as of its predecessor sections, that the proscribed act, the actus reus of the offence, is the sending of a message of the proscribed character by the defined means’. Under both the Communications Act 2003 and the Malicious Communications Act 1988, the minimal threshold the message/communication must meet is ‘indecent’. Just as an indecent image may fail to qualify as sexual, so might a sexual image fail to qualify as indecent: no doubt this would turn on the style of the photograph and the type and extent of the sexual act depicted. A highly-stylised, soft-focus image of a nude couple together, without it being clear what sexual activity is being engaged in, may not trigger the offence. Indeed, as our online and offline worlds are increasingly saturated with sexual imagery - art, advertising, traditional and social media - prosecutors may find that the communication offences are used less frequently as our collective perception of indecency begins to change.

Conclusion

The Criminal Justice and Courts Act 2015 was an opportunity to tailor an effective offence to the modern phenomenon of ‘revenge porn’ in a way that filled the gaps left by previous legislation. The aim was clear: the law needed to criminalise the disclosure of explicit images without the consent of the subject. It needed to be strict to stamp-out this casual practice. But the finished product appears to ride roughshod over the purpose of such legislation. It distinguishes acts of immaturity and thoughtlessness from acts of malice, even where the net effect on the vicim is the same. It distinguishes acts where the victim’s distress is merely a side-effect. At its heart, the behaviour identified under section 33 shares its DNA with offences under the Sexual Offences Act 2003. On any view, such disclosure is a serious violation of the subject’s bodily autonomy, akin to the individual who assumes sex once means sex always, or consent to one particular sexual act is consent to a range. Today, it would seem absurd to exonerate the non-consensual groper, who knew perfectly well that his/her victim did not consent to the grope but whose motives were light hearted. Successive Sexual Offences Acts have increasingly sanctioned such behaviour. To that end, section 33 is out of step with the body of statute it post-dates. If ‘revenge porn’ litigation continues to centre on an intention to distress or, where the communication offences are engaged, the general response to the content of an image, it will miss the point. Until section 33(1)(a) drops subsection (1)(b), ‘revenge porn’ law will continue to fail victims and prove itself to be an ineffective legislative bandage to a genuine social problem.

By Kate Parker who is currently undergoing pupillage at 5pb.


[1] (1) Any person who sends to another person

(a)  a [letter, electronic communication or article of any description] which conveys

(i) a message which is indecent or grossly offensive; or []

(b)  any [article or electronic communication] which is, in whole or part, of an indecent or grossly offensive nature,

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

[2] (1) A person is guilty of an offence if he

(a)  sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b)  causes any such message or matter to be so sent.

Posted by Kate Parker on 17 June 2016 at 19:59