Avenging revenge porn: the new criminal offence

'Revenge porn' has hit the headlines once more - but this time it's not a celebrity or high profile personality who is in the papers, but the potential for more perpetrators to be put behind bars.

Perhaps revenge is a dish best served not at all, argues Jennifer Agate
Perhaps revenge is a dish best served not at all, argues Jennifer Agate
On 12 February 2015 the Criminal Justice and Courts Act made it a criminal offence punishable by up to two years of imprisonment to share explicit photographs or videos without consent in England and Wales.

For the victims of 'revenge porn' and their advisers, the Act provides a long-awaited new tool in the fight to prevent the distress and embarrassment caused by the publication of such private sexual content.

Why was change needed?
 
Until now, a victim of 'revenge' porn (the sharing of private, sexual photographs or videos without consent for the purpose of causing embarrassment or distress) has had to adapt and use various pieces of legislation that are not always suited to the purpose, such as the Communications Act, to punish offenders. 

The problem with this was that the material in question had to be "grossly indecent, obscene or menacing in character". 

As we know, not all revenge porn is necessarily grossly indecent or obscene. 

It might be intimate but not necessarily indecent – think black and white artsy shots for example – photos shared within a stable relationship, published online after an acrimonious break-up in an act of revenge. 

The publication of such pictures can still cause an enormous amount of distress and embarrassment.
 
The other downside to pursuing a case using the Communications Act was that a maximum sentence of six months could be handed down.

What has changed?

The new Act creates a specific offence, widening the scope of material covered.  

A film or photograph is "private" if it "shows something that is not of a kind ordinarily seen in public" and "sexual", not only if it shows explicit content, but if it shows something that a reasonable person would consider sexual.  

Most significantly, the Act gives the court sentencing powers of up to two years' imprisonment.

What will clients need to show?

For the offence to be committed there must be three elements:

• Disclosure of private sexual photographs or film (online or offline)
• Without the consent of the individual who appears in the photograph or film
• With the intention of causing that individual distress

Steps to take

The immediate priorities will always be to remove the content from public access, while retaining all available evidence for a later criminal prosecution and/or civil action.  

The first step should be to contact your legal team, who will be able to work in conjunction with the police and others, for example search engine optimisation companies and other IT experts, to achieve these goals.

The launch of the Act has provided an opportunity to increase awareness of the criminal nature of 'revenge porn' and the risk of prosecution for anyone sharing explicit photographs without permission.   

Perhaps revenge is a dish best served not at all…

Jennifer Agate is an associate at Farrer & Co

Have you registered with us yet?

Register now to enjoy more articles and free email bulletins

Register
Already registered?
Sign in