As the Government prepares to debate an additional offence of “revenge porn” to be added to the Criminal Justice and Courts Bill one hopes that in addition to a more reasonable name for any offence they properly identify the gap in the criminal law that they seek to fill. While the deterrent effect of reasoned legislation is not to be ignored what victims perhaps more readily need is a way to have this material removed quickly and without the expense of a High Court injunction or doing battle with multinational search engine operators. The proposed legislation does nothing to address this.
The current law provides a means of prosecution for a range of conduct within our understanding of what is meant by “revenge porn”.The Protection from Harassment Act 1997 outlaws harassment and stalking. It is arguable that a course of conduct is established by a single publication where the individual is aware that the image will be viewed by multiple people. Each potential viewer would amount to a “publication” in the same way that we currently deal with other illegal images.
S4 of the same Act outlaws conduct which causes a fear of violence dealing with those occasions where there is disclosure of the victims’ personal details and they could reasonably fear repercussions from that disclosure.
The Malicious Communications Act 1988 s1 outlaws communications by way of letter, electronic communication or articles of any description which are grossly indecent or offensive, obscene or convey a false threat, provided there is an intention to cause distress or anxiety to the victim.
The Communications Act 2003 s127 outlaws communications sent by means of a public electronic communications network a message or other matter which is indecent or grossly offensive, obscene or menacing, or false, for the purpose of causing annoyance, inconvenience or needless anxiety to another. There is every reason to treat the images we are concerned with as indecent and sent for the purpose of causing annoyance and needless anxiety.
This is supplemented by the Protection of Children Act 1978, Sexual Offences Act 2003 and the Criminal Justice and Immigration Act 2008 which provide a plethora of additional relevant offences.
While the application of the existing law may appear to be inadequate when we are told that there have been only 149 complaints and few of these resulted in cautions or convictions, rather than reinventing the wheel the task is perhaps to ensure that the current law is enforced. To that end the Director of Public Prosecution has recently issued new Guidelines on prosecuting cases involving communications sent via social media.
This together with perhaps making the current summary only offences either way with maximum sentences of 12 months in the Magistrates Court and 2 years in the Crown Court may achieve the same goal.
Laws made quickly in response to Vox populi rather than the considered application of existing principles should generally be avoided no matter how sympathetic we are to the difficulties faced by the victims of such behaviour.