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Revenge Pornography - Guidelines on prosecuting the offence of disclosing private sexual photographs and films

Background

Following concerns raised by campaigners and Parliamentarians about behaviour known as "Revenge Pornography", the Government created a new criminal offence to ensure that this behaviour is fully captured by the criminal law. Revenge pornography is a broad term usually involving an individual, often an adult ex-partner, uploading onto the internet intimate sexual images of the victim, to cause the victim humiliation or embarrassment.

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The Offence

The new offence, including defences, is at section 33 of the Criminal Justice and Courts Act 2015. The offence is triable either way and punishable with a maximum sentence of 2 years' imprisonment.

Section 33 of the Criminal Justice and Courts Act 2015 creates an offence of disclosing private sexual photographs or films without the consent of an individual who appears in them and with intent to cause that individual distress.

In the circumstances where material is posted on a website hosted abroad, the court would need to be satisfied that it was in substance an offence committed within the jurisdiction. For example, if the perpetrator was physically located in England or Wales it would be possible for the offence to be committed. In R v Smith (Wallace Duncan) (No.4) [2004] EWCA Crim 631 [2004] QB 1418 the Court held that an English court has jurisdiction to try a substantive offence if "substantial activities constituting [the] crime take place in England"; or "a substantial part of the crime was committed here". This approach "requires the crime to have a substantial connection with this jurisdiction". It should be noted that there is no single verbal formula that must be applied: it is a question of substance, not form.

A person will only be guilty of the offence if the reason for disclosing the photograph, or one of reasons, is to cause distress to a person depicted in the photograph or film. On the same basis, anyone who re-tweets or forwards without consent, a private sexual photograph or film would only be committing an offence if the purpose, or one of the purposes was to cause distress to the individual depicted in the photograph or film who had not consented to the disclosure.  For example, anyone who sends the message only because he or she thought it was funny would not be committing the offence.

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Defences

Various defences will be available, as follows:

  1. Section 33(2): It is not an offence to disclose the photograph or film to the individual who appears in the photograph or film (mentioned in Section 33(1) (a) and (b)).
  2. Section 33(3): It is a defence if the defendant reasonably believed that the disclosure was necessary for the investigation, prevention or detection of crime.
  3. Section 33(4): It is a defence where a person discloses material in the course of or with a view to the publication of journalistic material so long as the person concerned reasonably believed that the publication in question was or would be in the public interest.

    It is recognised that occasionally there would be circumstances where such pictures will evidence a story of genuine public interest. The defence therefore ensures that the freedom of the press to publish such stories is not fettered.

    In relation to the defence relating to disclosures for journalistic activity, a defence will be established where it can be shown that the photograph or film was disclosed in the course of or with a view to the publication of journalistic material (for example by the journalist or by a journalist's source). If that is the case, the journalist must also show that he or she had a reasonable belief, in the particular circumstances, that there was a legitimate need for the public to have access to the journalistic material.

    Further guidance is available - Assessing the Public Interest in cases affecting the Media - Guidelines for Prosecutors.
  4. Section 33(5): It is a defence where the defendant reasonably believed that the material was previously disclosed for reward and had no reason to believe that the previous disclosure for reward was made without the consent of the individual.

    One example could be commercial pornography. Accordingly, it would not be an offence, whatever the motive of the person in publishing the photograph or film, unless the person has some reason to believe that the person in the image had not consented when the material was published for reward.
  5. Section 33(8): A person charged with an offence is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probably consequence of the disclosure.

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Definitions

Definitions of the meaning of "disclose" and "photograph or film" are set out in section 34 and the definitions of "private" and "sexual" are set out at section 35 of the Criminal Justice and Courts Act 2015.

The offence is drafted so that it only applies to material which looks photographic and which originates from an original photograph or film recording. This is because the harm intended to be tackled by the offence is the misuse of intimate photographs or films.

The offence will still apply to an image which appears photographic and originated from a photograph or film even if the original has been altered in some way or where two or more photographed or filmed images are combined. But the offence does not apply if it is only because of the alteration or combination that the film or photograph has become private and sexual or if the intended victim is only depicted in a sexual way as a result of the alteration or combination. So, for example, a person who has non-consensually disclosed a private and sexual photograph of his or her former partner in order to cause that person distress will not be able to avoid liability for the offence by digitally changing the colour of the intended victim's hair. However, a person who simply transposes the head of a former partner onto a sexual photograph of another person will not commit the offence.

Images which are completely computer generated but made to look like a photograph or film will not be covered by the offence.

The offence will apply to any kind of disclosure of private sexual photographs or films (assuming that the other criteria in the offence are satisfied). This could include uploading images on the internet, sharing by text or e-mail, or showing someone a physical image. The offence applies equally online and offline and to images which are shared by electronic means or in a more traditional way.

To fall within the offence, a photograph or film would have to be private and sexual. This could include an image that depicted an individual's exposed genitals, or a picture of someone who is engaged in sexual behaviour or posing in a sexually provocative way, if what is shown is not of a kind ordinarily seen in public.

The offence only makes specific reference to one part of the body - exposed genitals or pubic area - because this part of the body is considered to be so intimate that an image showing it should automatically be regarded as sexual for the purposes of the offence. Photographs or films depicting other types of nakedness would be caught by the offence if they meet the definition of private and sexual.

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Overlap with Existing Offences

Cases involving 'revenge pornography' may fall to be considered under the social media guidelines and under the following legislation:

Guidelines on prosecuting cases involving communications sent via social media is available here.

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Public Interest Factors

When assessing whether a prosecution is required in the public interest prosecutors must follow the approach set out in these guidelines as well as the wider principles set out in the Code for Crown Prosecutors. One factor that may warrant particular consideration is the involvement of younger or immature perpetrators. Children may not appreciate the potential harm and seriousness of their communications and as such the age and maturity of suspects should be given significant weight, particularly if they are under the age of 18.

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Websites

Removal of the images uploaded to the internet would be the responsibility of the website or social media provider. The offence does not itself force website operators to take action in relation to the uploaded material although reputable operators are likely to be compliant in its removal. Where a forum is specifically provided for the dissemination of material then the provider of the website could, depending on all the circumstances, be guilty of encouraging or assisting the commission of the offence - even if they are based abroad, although there may be practical difficulties about prosecuting foreign companies.

Section 33(10) refers to Schedule 8 of the Act which makes special provision in relation to persons providing information society services. The Schedule reflects the requirement in the e-commerce directive that information services providers based in the EEA should not usually be prosecuted for any offences which might be committed by providing services in the country where they are established. In rare cases, where all the requirements of the offence are satisfied including the intention to cause distress to the victim, the Schedule does not stop an operator being guilty of the offence if it actively participates in the disclosure in question or fails to remove the material once it is aware of the criminal nature of its content.

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