Next Wednesday, 22nd October, the House of Lords will debate the following amendment to the Criminal Justice Bill which, if passed, would make revenge porn a criminal offence. It follows :
After Clause 28 insert the following new clause –
Publication of private sexual images
(1) It shall be an offence for a person to publish a private sexual image of another identifiable person without their consent where this disclosure causes distress to the person who is the subject of the image.
(2) A person is not guilty of an offence under subsection (1) if he or she:
(a) reasonably believed that the person who is the subject of the image had consented to its publication
(b) reasonably believe that the publication of the image would not cause distress
(c) reasonably believed that the image had previously been published
(d) did not intend to publish the image
(3) For the purposes of this section it is immaterial who owns the copyright of the published image.
(4) An offence under this section is punishable by
(a) On a conviction on indictment, imprisonment for a term of not exceeding 2 years or a fine (or both);
(b) On summary conviction, imprisonment for a term of not exceeding 6 months or a fine (or both).
Liberal Democrat Justice Minister Simon Hughes talked about this on Sunday’s Murnaghan show where he was asked if this just wouldn’t criminalise young people:
No, the real abuse is older people who have had a relationship, the relationship breaks down, they have had intimate pictures taken during the relationship and then they decide to harass their former partners by doing this. You can never prosecute young people without going through additional thresholds of thinking whether the Director of Public Prosecutions thinks it is appropriate. But it is intended to send a message as well as deal with people who clearly want to harass their ex-partner that you cannot take what was a private arrangement between two of you and then put it out into the public domain and we believe that needs to be stopped in law.
Olly Grender, one of our peers who’s championed this change in the law said:
It is vital that we act in the House of Lords to criminalise revengeporn and protect that victims of this heinous practise.
Ultimately this isn’t about the sexual nature of the images but about the embarrassment and shame felt by those that have their privacy breached in this way.
I am grateful for the work my Lib Dem colleague Julian Huppert MP has been doing in the Commons to both raise awareness of this issue and lead the fight for it to be criminalised.
I must also congratulate Hannah Thompson who was brave enough to get in touch and ask Julian and I to change the law.
We’ve featured Hannah Thompson many times over the past few months. It takes incredible courage to speak out about suffering a humiliating experience, but she did it with great dignity and calmness and total reasonableness so she should have the last word on this new development:
It made me really ill to see that my ex-boyfriend had published pictures of me online.
I remember thinking at the time that this must be illegal. When I found out it wasn’t I started my campaign to ban revengeporn but I never thought anyone would listen to me.
I was so pleased when the Lib Dems picked it up in the House of Commons. The law needs to be changed and I am glad to see that we have a real chance to make this happen.
We’ll bring you coverage of the debate next week.
* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings
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14 Comments
You’re crafting a tool of social manipulation and have done nothing to limit the concept of revenge. If you can get a picture of your mates girlfriend naked (which isn’t unheard of for modern teenagers) this legislation would mean you can potentially get your mate or his girlfriend locked up, which would be a massive win for the abuser. It multi-dimensionalise the potential abuse; you’re making it possible to imprison someone by virtue of seemingly uploading the images, which of course you could never categorically prove they did or didn’t do. So this legislation is either completely useless, or a dangerous tool for abuse.
Top work!
So you think we should just let the modern, legal form of abuse of women continue? We have courts to determine guilt and they would consider the evidence in all of these cases.
Define “private sexual image”. The problem with the law is that we have different “bits” of it already in effect, all with slightly different terms to describe what constitutes offending material. This amendment doesn’t link up with the wording or definitions of any of them, either in terms of defining “private”, or “sexual”. It’s a dreadfully-worded amendment and while I want something done about revenge porn, I want it done properly. This amendment doesn’t deserve to pass – for heaven’s sake get a lawyer involved who actually understands the law.
Hi Caron,
Firstly, I’ve got no idea why you need to sexualise such legislation, surely this applies equally to men and women? Secondly, when was the last time you had to defend yourself in a court of law? From what you’ve written I’ve got the impression that it wasn’t recently, not in the past 4 years unless you had very good representation and were therefore very wealthy.
The outcome of modern British court hearings are partially determined by the wealth of the participants. This legislation is a weapon for rich people to exploit poor people, for the Lrd Ahcfts of this world to have methods of control that far surpass having a few naked pictures online, so I can’t help but wonder if he had a hand in this.
This year I spent a lot of money on court costs and got the result I wanted; prior to spending a lot of money, things were very, very bad. I think your faith is misplaced and based entirely on lack of personal experience, when you’re confronted with the realities of what you’re proposing you’d feel completely different. Barristers are powerful things, and you’re sticking young people’s futures in the hands of who can afford the best one – this is why rich people run the show.
Is “sexual image” defined anywhere? Does it exclude, say, a holiday snap taken on a topless (or even nudist) beach? How about non-photographs? Is a quick line-drawing entitled “Trevor’s tiny dick” covered? How about if it’s not ‘published’, merely circulated direct to friends via mobile phones? Bullying comes in many forms.
Incidentally, I’m not advocating doing nothing. I’m advocating not doing anything until we’ve got something better – I don’t understand how making more potential for abuse can improve this situation. This legislation falls to pieces even under very gentle scrutiny, imagine what it’s capable of when someone puts their minds to it!
I support making “revenge porn” illegal, but not only revenge porn, even threatening to do it as a form of blackmail should be made illegal too. What happened to Emma Watson was horrific, hoax or not.
There are grey areas and fine details, but these can be worked out. I applaud those working this out, but the message should not be sent that we are dragging our feet on this. It needs to be constructive engagement.
Regards
I’m glad the government has finally concluded that a new law is necessary, after months of dithering indecision about whether revenge porn was already illegal or not.
However I expect the law to be applied in only a handful of the worst and most open-and-shut cases, since it would be so difficult to prove. Given that a staggering ten million mobile digital devices are lost each year in the UK (source: EE survey, March 2014), not even mentioning the stolen ones, and many cloud storage accounts are apparently so easy to hack (just ask any celebrity), it’s going to be nigh on impossible to prove guilt beyond reasonable doubt if an offender takes the kind of simple precautions most tech-savvy kids already know about. The potential for miscarriages of justice would become immense, with clued-up offenders getting away with it while some harmless kid who accidentally leaves his phone on a bus could end up before a judge.
So while I support the new law, I’m a bit perplexed that liberals seem to be going entirely against their usual instincts on this one, hoping that a law will solve the problem and saying virtually nothing about the importance of education.
I think the legislation is very badly worded and will of course be left to the court to determine the meaning of what
(a) reasonably believed that the person who is the subject of the image had consented to its publication
(b) reasonably believe that the publication of the image would not cause distress
(c) reasonably believed that the image had previously been published
Given that courts are fairly useless at that sort of stuff and given that our prisons are already full to bursting and don’t do the job they are meant to do and that the whole court process can be very stressful, expensive and time consuming for someone wrongly accused I do think there are real problems with this approach. My mind is drawn back to whether Vicky Pryce was coerced in to taking speeding points or consented.
Would this not be better covered by the existing laws on harassment without making a special offense ?
Dangerous Dogs Act 1991 is the phrase that comes to mind.
This seems very weak in that it doesn’t define “private sexual image” – though that may be using a definition elsewhere in the act.
But there are some very ill-informed comments above.
1) You don’t need to make provision for blackmail as that is already an offence whether pictures are private, sexual or whatever.
2) This legislation is completely gender neutral
3) The courts are pretty good at interpreting phrases like “reasonable belief” and the concept is well used in other laws with no suggestion that juries have problems interpreting it.
4) If you get a picture of your “naked mates girlfriend” then it has either been given to you (possibly an offence under this provision) or you obtained it without consent (see various offences for accessing computer systems without permission). If you then published it you would be commiting the offence not them.
Hywel,
You seem to of misunderstood my point, which is that this turns a problem between 2 people into a problem of who is the most technically competent and who has the most money, because it’s that which will determine outcomes. In the examples you’ve given it’s been proven time and time again that UK courts can’t prove culpability for crimes where all you have is an IP address and a physical address, for example Media CAT Limited v Adams & Ors [2011]. I think you’re “very ill-informed” as regards the efficacy of such legislation and it’s ability to produce convictions – show me a working analogue and I’ll change my mind but I think it would require admission of guilt to work.
More likely than any legitimate use is as a tool for abuse. Find picture of someones ex on their PC, upload it to high traffic porn site, anonymously tip-off loud-mouthed third party, watch him go through a year of hell. They won’t go to jail because it can never be proven conclusively that he/she did anything (which makes all of this pretty meaningless), but it could seriously wreck their life in the interim. It doesn’t matter who is actually committing a crime, what matters is what can be proven beyond reasonable doubt. Obviously there are more complex constructs to be had from this idea, but as I said before, it creates the potential for whole new dimensions of abuse that only money can fix.
I’m unconvinced we’ll ever see a single conviction from this, like I said this whole thing seems completely detached from the current legal landscape.
The problem with your analysis is that in these cases the courts wouldn’t just have an IP address. What you would have is a privately taken photograph only in the possession of the accused which has become public, and the route by which it became public is from an IP address which a computer in their possession was using at or about the relevant time. It is taking the two facts together that (could) establish a strong case.
IP addresses are used as evidence all the time. Of course they aren’t in and of themselves conclusive but it is very rare for one piece of evidence to do that on its own.
Of course there are defences that can be made to that set of facts. But what you seem to be saying is that matters of fact can’t be resolved by a jury. And of course you stealing a pic of a mates computer and uploading it to cause him problems is possible – but not that likely (someone who has it in for you that much is fairly unlikely to get access to private images of that nature)
>What you would have is a privately taken photograph only in the possession
>of the accused which has become public,
So, this digital photo is only in the possession of the accused…and the public…sounds watertight, what could go wrong?
>It is taking the two facts together that (could) establish a strong case.
This is why judges are a really good thing, your idea of a strong case is thankfully completely different to the standards usually upheld in court.
>IP addresses are used as evidence all the time.
No, they’re not, that’s the point! It’s been proven in UK case law that you can’t use IP addresses as a personal identifier, once a case sets a precedent that’s considered law, prior to the MCL/A&O case nobody wanted to touch IP’s correlating to people with a bargepole, because they knew it would be a landmark case (and thus slow and costly to hear). As for what people who have it in for you will and won’t do, it suggests to me an indicator of a sheltered existence or just youthful innocence, take it from me, people are capable of some pretty messed up stuff.
>But what you seem to be saying is that matters of fact can’t be resolved by a jury.
It’s been proven (in nearly every western court, one at a time) that a jury can’t determine a case that hinges on claims such as “person X uploaded image Y through IP address Z”, because of the nature of such a claim and the objects therein. It’s inherent in the nature of the digital domain that all information can be changed arbitrarily, and therefore it’s considered very weak evidence.
If you’re still convinced we could have a wager? 🙂