The offence of ‘disclosing private sexual photographs and films with intent to cause distress’ – more popularly known as ‘revenge porn’ – was introduced in 2015 to combat the malicious practice of sharing illicit photographs and videos on and offline. Since then the police have tackled thousands of reports of revenge porn and many offenders have been convicted.

Dr Samantha Pegg

Dr Samantha Pegg

The introduction of the offence has not been without its difficulties. The number of reported offences far outstrips the number of prosecutions that have been taken forward. This has been attributed to victims withdrawing their support for prosecution. As the offence is not a sexual one victims are not currently entitled to anonymity and victims are unsurprisingly reluctant to expose themselves to further exposure through the court process. Labour are currently pushing for an amendment to ensure victim anonymity, but until that is successful anonymity can only be guaranteed when the victim is a child or, exceptionally, if a judge orders that the victim is not named.

So what amounts to revenge porn? The law currently requires that a photograph or film is disclosed to a third party – and this can be either online, as it typically the case, or offline. The image must be a private and sexual one. Images featuring genitals, or the pubic area are automatically defined as private and sexual. Other intimate images may be sexual if a reasonable person would consider them so because of its nature or its content, so images of breasts or even buttocks could be considered sexual.

The image must be disclosed without the consent of the individual featured in that image and with an intention to cause distress to that person. This requirement has been contentious. Consider, for example, a man who sends intimate images of his ex-girlfriend to their manager at work when both are up for a promotion. His motive is not to cause distress, but to discredit her. The criminal justice system has been taking a fairly expansive view of an intention to cause distress and it is likely such incidences would be captured by the offence – but it would be helpful if this was clearer.

Concluded cases have typically involved images disclosed on social media platforms, particularly Facebook. Although the criminal law provides no mechanism for the take down of these images social media providers such as Facebook and Twitter do police their platforms and will remove illicit images when these are identified and/or reported, but these processes can be slow and once an image is posted it could be more widely distributed.

The take down of images could be achieved by bringing a civil action, a claim for breach of privacy or copyright. However, bringing a civil action can be a costly business and a more practical solution is to contact the Revenge Porn Helpline for support and practical guidance. With the links they have established they can help with the removal of images.

Do be aware that threats to share intimate images do not amount to the revenge porn offence in England and Wales (they do in Scotland), but they may amount to offences of harassment or coercive control and should also be reported to the police.

Dr Samantha Pegg is a senior lecturer at Nottingham Law School, part of Nottingham Trent University

Sources of advice and support

https://revengepornhelpline.org.uk/

https://www.saferinternet.org.uk/


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