As our lives have moved online, new types of crime have emerged. It is widely reported that our laws and enforcement bodies have failed to keep pace (although the long-awaited Online Safety Bill is promising). One area where victims have undoubtedly been failed is the dissemination of “revenge porn” – that is, the non-consensual publication of intimate images or footage.
The motivation behind sharing such content varies. Some perpetrators steal intimate footage for financial gain (known as “sextortion”). Others publish this content to spite and shame previous romantic partners.
Given how ubiquitous smart phones have become, the sharing of intimate content is an increasingly common element of romantic relationships. According to a 2020 survey by UK charity Refuge, “27% of young men and 43% of young women have shared such images with another person”.
Of course, with this increase in the sharing of sexual material comes an increased risk of exploitation. It is critical that the law and technology companies safeguard those whose images might be used against them – whether as a method of revenge or extortion.
The frequency of this crime was unearthed by Refuge’s 2020 survey which found that one in 14 adults have experienced threats to publish sexual content. This, they also discovered, is often part of a pattern of controlling and coercive behaviour.
The prevalence of this phenomenon was reflected in Netflix’s recent offering – “Do Revenge”. In this dark comedy, one protagonist has her sex tape leaked. She becomes a social outcast overnight and the perpetrator comes out (at least initially) unscathed. While the revenge storyline does not cast anyone in a good light, the film’s underlying premise is that the non-consensual publication of intimate content is a devastating experience.
Simply advising young people not to share such images – and expecting them to bear the consequences of abuse by others – is irresponsible and untenable. In addition to legislation, there is much to be gained by building awareness of this often-concealed crime, and ensuring young people are armed with the facts when it comes to sharing intimate content.
What does the law say about revenge porn?
Shockingly, this conduct was not criminalised in England and Wales until seven and a half years ago. On 13 April 2015, section 33 of the Criminal Justice and Courts Act 2015 came into force. As originally enacted, the legislation read as follows:
- It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made –
- without the consent of an individual who appears in the photograph or film, and
- with the intention of causing that individual distress.
The seriousness of this crime and its impact on victims was acknowledged by the Government’s decision to widen the legislation in 2021. Critically, the offence now includes threats to disclose such material.
The offence was and remains an either way offence – this means it is triable on indictment in the Crown Court or summarily in the Magistrates’ Court. It is subject to a maximum penalty of two years’ imprisonment.
Does the law adequately protect victims of revenge porn?
As originally enacted, section 33 and its enforcement were not robust enough. Indeed, the Crown Prosecution Service reported that only 206 cases were prosecuted in the first year of the offence – this represented a mere fraction of revenge porn cases reported to the police.
Until recently, mainstream adult content websites often included a “revenge category”. In 2014, The Economist reported that “at least 3,000 porn websites around the world feature the revenge genre, and the number is rising”. Since the expansion of the offence in 2021, many providers have removed this genre and specify that content of this nature is illegal. Depressingly, however, The Times recently reported that “British-based dedicated revenge porn websites remain established”.
That said, there is progress being made in this area. The gravity of revenge porn – and the role of technology companies in facilitating it – is finally being more seriously addressed. As of February 2022, revenge porn was included in the Online Safety Bill’s list of offences, meaning that technology companies will have to remove such content as a priority. If companies fail to do so, they could face fines of up to 10% of their annual worldwide turnover.
Avenues of redress
Critically, the publication of revenge porn is not just a criminal offence. It is also likely to infringe an individual’s copyright, privacy, and data protection rights. As such, there are various forms of potential redress in the civil courts.
In respect of copyright, assuming the relevant footage was taken by the victim or at their instruction, it constitutes an original work in which the victim holds rights as the “author”. Given the sensitive nature of this type of content, there is no arguable fair use or fair dealing defence, and publication is likely to entitle the victim to aggravated damages.
Another potential civil claim is misuse of private information. Sexual content is self-evidently of a highly personal nature and individuals clearly have a reasonable expectation of privacy in respect of their content. As such, non-consensual publication of that content breaches the right to respect for their private life under Article 8 of the European Convention on Human Rights. In other words, the dissemination of revenge porn is as much a human rights issue as it is a criminal one.
Publication of such content online also constitutes the processing of that individual’s personal data, which is subject to the UK General Data Protection Regulation (the “GDPR”) (in accordance with Article 3 of that regulation). In the case of revenge porn, the processing of this content is clearly unlawful, unfair, and excessive. This breaches core data protection principles, as set out under Article 5 of the GDPR, laying the groundwork for civil proceedings and the right to seek compensation.
In summary, there are various forms of redress for victims of revenge porn. If perpetrators start being held accountable in the civil courts, as well as the criminal courts, this may be an effective deterrent. Ultimately, however, it is the responsibility of technology companies to make their platforms safe, prioritise privacy, and minimise the risk of revenge porn being disseminated. It remains to be seen whether the Online Safety Bill (still in draft form) goes far enough to hold these technology companies accountable.