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Revenge porn: law moving in right direction but still some way to go

Posted on 23 February 2015 by Claire Gill


This article by Claire Gill was first published in The Times online on 19 February 2015.

The government wants to send a clear signal that sharing images without consent is unacceptable; the challenge is keeping up with technology.

“Revenge porn” - something every bit as unsavoury as it sounds - has been criminalised, thanks to the Criminal Justice and Courts Act. Victims, in most cases women, have long-called for more to be done to stop people who set out to hurt and humiliate their former partners by sharing private sexually explicit images of them online.

Picture of young lady looking shocked at a laptopThe act, which received royal assent last week, makes it an offence to disclose a private sexual photograph or film without consent and with intent to cause distress. The police and the Ministry of Justice hope that the penalty, of up to two years in jail, will act as an effective deterrent. If this seems a high price to pay for one vengeful click, that is the point.

“Revenge porn” was caught under existing legislation, such as the Communications Act 2003 and the Protection from Harassment Act 1997, but prosecutions were rare. Moreover, the offences were not easily applied to the act of posting a single sexual image on a social networking site. Now, though, it will be easier to prosecute offenders.

There is a defence, deemed necessary for press freedom, for disclosures with a view to publication of journalistic material believed to be in the public interest. The availability of the defence may well weaken the deterrent factor for former lovers of celebrities or public figures who think that they have an important story to tell or sell, but during the debates leading up to the passing of the act, Lord Faulks noted that this “stringent test” will only apply in rare cases.

So how will the act play out in practice? The government and the police encourage victims to come forward, and anticipate a rise in complaints. There will probably be a few high-profile cases to make an example of offenders and to hammer home the message, as happened in the United States, when last December a man was prosecuted under new Californian laws for posting images on Facebook. His conviction was hailed as sending a strong message to potential offenders. “Revenge porn” laws are in place in 13 states in the US.

What victims really want is to stop images being shared in the first place. Prosecuting after the event may offer them little comfort, and if the images are not removed from social networking sites, then the distress, humiliation and damage to reputation continues.

There are various ways in which the civil law can help. If the image is a “selfie”, then the person in the photograph is likely to be the copyright owner. Images are often accompanied by text making damaging allegations that may be defamatory. The publication of the image will almost certainly be an infringement of privacy rights, and if a series of images are posted, that may amount to harassment. All of this might entitle the victim to civil damages.

Social networking sites need to do their bit, and English law will not necessarily bite on sites based in the US. Facebook has indicated a willingness to remove offensive or pornographic material that breaches its terms and conditions, but authorities need to ensure that this really happens and to bring other sites into line. The challenge is keeping up with technology and the ways in which information can be shared.

The intent behind the law is laudable and is part of the Ministry of Justice’s “Be Aware B4 you Share” campaign. The government wants to send a clear signal that sharing images without consent is unacceptable. Let’s hope the message is heard.


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