In our blog published 5 August last year, we highlighted the increasing phenomenon of revenge porn and harassment via social media sites, and analysed the effectiveness of existing civil and criminal legislation such as the Protection from Harassment Act 1997, the Communications Act 2003 and the Malicious Communications Act 1998 to protect victims of revenge porn and harassment etc.

Several cases have been reported by the media in the last year of people being prosecuted and jailed for sexual harassment on the Internet including a Nottinghamshire man who shared an explicit photo of his former girlfriend on WhatsApp being jailed for 12 weeks for harassment and a sports coach jailed for five months for a campaign of sexual harassment against a gym instructor through anonymous e mails and text messages which a court was told forced the victim from her job and “effectively destroyed her life.”

The commonly held view was that existing law dealt adequately with complaints of this nature but it was noted that there was movement to introduce a new standalone criminal offence of disclosing private sexual photographs and films with intent to cause distress.

Such new criminal offence is now to be introduced by way of amendment to the Criminal Justice and Courts Bill which is currently going through parliament. The Bill has been through most of its stages in the House of Commons and the House of Lords and is close to receiving Royal Assent. 

The new offence of “Disclosing private sexual photographs and films with intent to cause distress” will criminalise the disclosure of photographs or films which show people engaged in sexual activity or where they are depicted in a sexual way where what is shown would not usually be seen in public. For the offence to be committed its disclosure must take place without the consent of at least one of those featured in the picture or film disclosed and with intention of causing that person distress.

Conviction may lead to imprisonment for up to 2 years, or a fine or both.

The Bill sets out various defences to the new charge including that he or she reasonably believed that the disclosure was necessary for the purpose of preventing, detecting or investigating crime or that disclosure was made in the course of publication of journalist material and that in the particular circumstances the publication of the journalist material was or would be in the public interest. It will also be a defence for any person charged to show that he or she reasonably believed that the photograph or film had previously been disclosed for reward and that there was no reason to believe that the previous disclosure was made without the consent of the individual.

The Bill provides detailed definitions of the words “private”, “sexual” “disclosed” and “photograph or film”. The Ministry of Justice has issued a fact sheet to accompany the amendments which outlines that the government has looked carefully at the concerns raised by campaigners and parliamentarians about the uploading and sharing of revenge pornography and whilst recognising that there are a number of existing criminal offences that could apply for instances of revenge porn, the government believes that creating this new offence is the best way of effectively targeting such behaviour.