A new criminal offence for ‘revenge porn’ is laudable in its intent, but an opportunity missed.

The popularity of social media has seen a consequent rise in the malicious posting of intimate pictures online. The ‘revenge porn’ offence in the Criminal Justice and Courts Bill aims to combat this behaviour by prohibiting the disclosure of private sexual images without consent and with an intent to cause distress.

Existing offences can be used to tackle this behaviour. Disclosing a pornographic image may be an offence under the Communications Act 2003 or the Malicious Communications Act 1988. Disclosing or threatening to disclose private sexual images could be an offence under the Protection from Harassment Act 1997 or, in some circumstances, blackmail. Obviously, these offences were not designed to deal with the conduct in question here – so does this demand the creation of a new criminal offence?

Prima facie this is a civil matter. While we have seen a steady creep of criminal law into private relations, this has usually been predicated on a threat of harm to the wider community or a total absence of consent. Here, the photograph or video was initially taken with the subject’s consent (otherwise it would fall under the existing offence of voyeurism), with the crux of the offence the later, non-consensual disclosure of that image.

This offence is then primed to tackle disclosure driven by revenge or spite; in other words, its focus is on a private confidence broken. Civil remedies that protect private materials already regulate this area.

Civil actions can be long and costly, and enforcing any order for the removal of images may be difficult if hosted overseas. There are also problems with how this offence has been drafted.  

The offence adopts a definition of ‘sexual’ akin to that found in section 78 of the Sexual Offences Act 2003, by directing that an image would be inherently sexual where ‘it shows all or part of an individual’s exposed genitals or pubic area’ or could be reasonably held to be sexual by nature or context where ‘it shows something that a reasonable person would consider to be sexual because of its nature’, or ‘its content, taken as a whole, is such that a reasonable person would consider it to be sexual’.

This embraces images where people are engaged in sexual activity but offers little clarity where images feature less conventional ‘sexual’ acts or poses and could leave individuals incapable of effectively regulating their behaviour.

Disclosure will occur when a person ‘gives or shows it to the person or makes it available to the person’. This not only embraces online publication – the mischief this offence seeks to tackle – but any display of the image. Should a quick glance at a photograph displayed on a desk or on a phone be captured by this offence?

The offence exempts disclosures necessary for the purposes of preventing, detecting or investigating crime. But it goes further, allowing for disclosure where the image is revealed as part of ‘journalistic material’ in the public interest. One wonders what the public interest would be in disclosing such images if it is not in pursuit of revealing criminal activity.

By requiring an intention to cause distress the offence may be of limited utility. One could assume any non-consensual disclosure would inherently be held to cause distress, but what if the motivation is wholly financial or sexual? Given the currency such pictures hold it is not hard to imagine images will be disclosed for reasons other than causing distress. Is disclosure for financial gain any less harmful?

This offence is an opportunity missed. In the field of pornography the legislature are prone to producing ill-conceived offences – this bill, for example, seeks to remedy an earlier mistake, the omission of ‘rape porn’ from the extreme pornography offence. Using existing civil law remedies would avoid these tricky questions of offender motivation and the sexual nature of images, and would more correctly reflect the spirit of the offending behaviour.

Dr Samantha Pegg is senior lecturer at Nottingham Law School and managing editor of Law, Crime and History

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