Little over a year has passed since the Criminal Justice and Courts Act 2015 [“CJCA 2015”] came into force, making it a criminal offence to disclose private sexual material with the intent of causing fear and distress; legislating for the increase in so called “revenge porn.” A slow uptake in successful convictions for this offence has prompted the tabling of further amendments which would serve to widen the ambit of revenge porn criminality, to lower the bar for prosecutions and to encourage reporting of these crimes by granting anonymity to victims.

The Liberal Democrats, in leading the charge, point to the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 as a demonstration of the direction in which the law of England and Wales should go. Section 2 of that Act, which received Royal Assent in April of this year and applies only to Scotland, created the offence of disclosing, or threatening to disclose, material showing or purporting to show another person in an “intimate situation” without consent. In committing the offence, the defendant must have intended fear, alarm or distress or have been reckless as to whether the same would be caused. In terms of the material itself, an “intimate situation” is defined as that which a reasonable person would consider to be a sexual act (and is not an act which would ordinarily be done in public), or where the genitals, buttocks or breasts are exposed or covered only in underwear.

The law north of the border therefore goes much further than its current counterpart in England and Wales. Section 33 of the CJCA 2015 does not provide the secondary layer of criminality as in Scotland; disclosure here must currently be actual rather than threatened, and the fear/distress caused must be specifically intended as part of the offence, rather than the result of recklessness. It is these differences, combined with a lack of anonymity or compensation for victims, which according to Liberal Democrat MP Alistair Carmichael are responsible for only 11% of reported offences resulting in charge.

The proposed amendments are tagged onto the Police and Crime Bill under section 61, which yesterday passed through its third reading in the House of Commons.1 The revisions to the CJCA 2015 would directly mirror the Scottish model as follows:

  1. The offence of threatening to disclose private material would be inserted into section 33;
  2. The harm caused to the victim would be expanded to include alarm as well as fear or distress;
  3. In addition to a defendant causing harm intentionally, he/she could also commit the same offence by being reckless as to the causing of fear/alarm/distress;
  4. The definition of “sexual” is further expanded, to ensure that “the disclosure of pornographic photoshopped images […] are covered by the law.”
  5. A further offence would be added, to criminalise those who “knowingly promote, solicit or profit” from the disclosure of private material, where there is a reasonable belief that the disclosure has been done without consent.

There are currently no publicised plans to amend the original definition of “disclosure,” meaning a suspect can technically still disclose by passively making material available to another party, as opposed to active online publication.

The addition of compensation and anonymity for victims would be covered by the new draft clauses 41 and 46. Speaking in Parliament about themyriad of amendments” proposed, Maria Miller MP stated that “our law is struggling to cope” and that the changes reflected that. However, she also intimated that the amendments were not the end of the line in terms of the very real threat posed by online sexual offences, and that it iswholesale review of the law, police training and the development of international support for digital providers to take seriously the importance of keeping their communities safe online” which is needed, rather than a patchwork quilt of additional offences.

Commentary

There is little doubt that the amendments as drafted would lead to an increase in the conviction statistics, at least in the short term, which are so relied upon in the assessment of success for criminal legislation. It is also to be commended that those who profit from the online publication of private sexual material would be specifically criminalised. The introduction of the lower recklessness bar in particular will inevitably widen the net to all those who act in the spur of the moment, with the click of a button, and with no thought to or appreciation of the distress of a former partner.

However, there are very real concerns which deserve to be addressed regarding the handling of these types of cases, the ability of the police and prosecution authorities to properly investigate online crime, and the demographic of those under investigation. It is a sad reality that offences involving a blurring of the public/private distinction within intimate relationships tend to be committed by those of the millennial ‘Snapchat’ generation.

Whilst the protection of victims who find their most intimate and private moments displayed online without their consent must be rightly paramount in the minds of those legislating, a balance must be struck to ensure that all parties at the investigation stage are treated with even-handed fairness and impartiality. The risk which can be foreseen is that in lowering the bar for those victims with legitimate and proper complaints, the floodgates open to potential convictions of those who lack the capacity to foresee the severity of their actions. Considering the offence as it stands can carry a two year prison sentence, moments of recklessness have the potential to cause irreparable long-term damage to all concerned.