The Criminal Justice and Courts Act, which received Royal Assent on 12 February 2015, has been much talked about in its long progress through Parliament. The subjects up for discussion have been as varied as the provisions of the Act itself, but for the purposes of this piece, attention is drawn principally to section 33, which criminalises the “disclosure of private sexual photographs and films with intent to cause distress” and imposes a sentence of up to two years imprisonment.

In the wake of the Sony hacking scandal and a rise in the prevalence of so-called ‘revenge porn’, this section addresses increased public concern over the very personal violation of an individual’s privacy, likened by some as akin to a ‘virtual rape.’ The intention of the legislation is well meaning and a solution to the social problem is much needed. However in reality, it is often the case that the original intent of the legislation is warped when put into practice by the relevant authorities. This risk is further heightened in light of the much publicised victim-orientated approach to prosecutions of sexual offences.

The operative offence under section 33 is the disclosure of a “private sexual photograph or film.” That disclosure must be done:

  1. without the consent of an individual who appears in the photograph or film, and
  2. with the intention of causing that individual distress.

It is important to note firstly that, by its very existence, this offence covers images which were originally created by mutual consent. Images taken without consent are already the subject of the criminal offence of voyeurism under the Sexual Offences Act 2003.

Secondly, a crucial element which is worryingly open to interpretation is the definition of “disclosure.” The disclosure involved will not have to be direct or even purposeful with respect to the wording of the legislation under section 34(2), by which a person will be said to have disclosed something if “by any means, he or she gives or shows it to the person or makes it available to the person.” It could well be the case that a person can be said to have disclosed something even if the photograph is created and stored on a personal device; never uploaded or sent but to which another person is given or obtains access. Such disclosure will nevertheless still be bound by the requirement that it was done with specific intent to cause distress, and it will not be sufficient for the distress to merely be a ‘natural and probable consequence of the disclosure.’

It is further unclear precisely what will constitute such intent. One could reasonably assume that the disclosure of a private sexual image will always in some way cause distress to the subject. However, there is no provision within the legislation which will cater for someone’s reasonable belief that the subject consented. The only mentions of ‘reasonable belief’ is for the purposes of investigating or detecting crime and in the context of images or videos which had previously been disclosed for reward, i.e. the complainant had consented to the release of those images previously in return for financial gain and the defendant reasonably believed that consent was continuing

The meaning of what will constitute “sexual” is defined in section 35(3);

  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.

This is broadly in line with the definition to be found in section 78 of the Sexual Offences Act 2003; however its presence within that legislation pertains to activity which is generally direct and physical in nature such as rape and sexual assault, trafficking and prostitution. Section 78 defines “sexual” for the purposes of “penetration, touching or any other activity” and utilises the reasonable person test to determine whether the activity would be deemed sexual due to its general circumstances or nature.

The broad scope of this definition in the context of private images or videos taken with consent, and which may not originally have been meant by either party to be sexual or salacious, constitutes a real problem for individuals who may find themselves subject to investigation, with those images placed under an external, objective assessment by a prosecution service which is becoming publicly and vehemently victim-centric. Very often it is the investigation stage which is most damaging for individuals. Even where no further action is ultimately taken, whether due to representations by the defence or lack of evidence or withdrawal of the complaint, it is the process itself which can impact severely on an individual’s life; the presence of police is not often looked kindly upon by employers, family members and partners. There is a danger that the much-advertised deference to complainants, combined with this particular legislation will be pursued for collateral purposes. It may occasionally be the complainants looking for revenge, and whilst practitioners will hope that the courts would take a common sense approach in their interpretation of this legislation, it is still the case that criminal law should not be made available as a weapon to be utilised in the process of a private relationship breakdown.