With effect from 13 April 2015, sections 33-35 of the Criminal Justice and Courts Act 2015 (CJCA 2015) seek to provide an overarching answer to the problem of revenge porn.  In my previous blog published on 13 October 2014, I argued that new legislation was not necessary and my view has not changed since then.  Here is a summary of the legislation:

The offence formerly referred to as “Revenge porn” is redefined as “disclosing private sexual photographs and films with intent to cause distress” (CJCA 2015 s33 (1)).

The offence is complete where such (still or moving) images are disclosed:

  • 33 (1) (a) without the consent of an individual who appears in the photograph; and
  • 33 (1) (b) with the intention of causing that individual distress.

The penalty on conviction is 2 years in the Crown Court and 6months in the Magistrates Court.

“Private” and “Sexual” are defined in s35.  Private is something that is “not of a kind normally seen in public”.   S35 (3) defines a photograph or film as “sexual” if:

  1. it shows all or part of an individual’s exposed genitals or pubic area,
  2. it shows something that a reasonable person would consider to be sexual because of its nature, or
  3. its content, taken as a whole, is such that a reasonable person would consider it to be sexual.

Disclosure includes giving, showing or making the image available.  Mass publication or putting the image on a social media platform will obviously fall foul of the law but so will showing a friend or colleague if that can be proved.  Receiving an image does not amount to an offence however the best advice is to delete it and of course not to forward it.

Disclosure to the individual mentioned in s1 (a) & (b) is not an offence (under this legislation but see the Protection from Harassment Acts 1997 & 2014). The age of the participants remains irrelevant (for the purpose of this statute) and so a young person disclosing a picture of a similarly aged partner to a friend of a similar age, will also commit an offence (as well as potential offences under the Protection of Children Act 1978).

Consent or rather the absence of consent is an essential element of the offence.   It is unfortunate that the act is silent as to what amounts to consent, and in my view misses an opportunity to harmonise with other legislation in providing an age for consent.  Consent to a disclosure can be given generally or specifically.  One can envision factual and legal argument about what consent was given, whether it was informed, whether it was general or specific together with the proximity of that consent to the disclosure.

Intention is dealt with positively in the legislation so that by virtue of s33 (8) “A person charged with an offence…. 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”.

There are several statutory defences in s33 including:

  • S33 (4) - disclosure made in the course of publication of journalistic material and a reasonable belief that publication was or would be in the public interest;  
  • S33 (5) - a reasonable belief that the photograph or film had previously been disclosed for reward together with “no reason to believe” that the previous disclosure for reward was made without the consent of the individual. 

One problem that may be anticipated by practitioners is the evidential difficulty in proving a negative.

The difficulties with evidencing these defences is to an extent ameliorated by the evidential burden shifting from the defence to the prosecution once sufficient evidence of the “matter”  has been adduced.

Taken together the legislation aims to do the right thing.  Whether it in fact does will be something we have to assess in the future.