LibLink: Wera Hobhouse on downblousing

In The House Wera Hobhouse introduces us to the concept of downblousing and calls for it to be recognised as an offence.

Downblousing is the latest manifestation of misogyny enabled by the smartphone era. The law must catch up with the times.

Somehow downblousing is not covered by existing legislation – voyeurism nor revenge porn laws. Downblousing is where someone’s chest is photographed without their consent. An obviously intrusive, disgusting and frankly wrong act that currently carries no consequences.

It is another manifestation of misogyny and violence against women and girls that the law overlooks. It is time that the law caught up with the 21st century. Recently, the Law Commission proposed that new offences are made in England and Wales, following the lead of Northern Irish law. This law would cover all acts of intentionally taking or sharing a sexual, nude or intimate photo or video without consent.

Of course, Wera has successfully tackled others forms of harrassment against women in the past.

In February 2019, my Upskirting Bill became law. This made it illegal to photograph someone from under their skirt without consent. I could not believe that this wasn’t already banned, and the British public strongly agreed. An ITV poll at the time suggested that 96 per cent of the British public supported the criminalisation of upskirting. In the year of its adoption, 153 reports of upskirting were made – some victims being as young as 10 years old.

Cyberflashing was criminalised months ago by the government. Some 76 percent of girls aged 12 to 18 have received an unsolicited penis image. It is a form of sexual harassment from which even the physical boundaries of a home offer no respite. I had long encouraged the government to criminalise the abhorrent act.

The law must keep pace with the rising capabilities of technology. This government was slow to act on upskirting and cyberflashing, and now they must look to tackling downblousing.

You can read the full article here.

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  • Brad Barrows 27th Jul '22 - 12:10pm

    Rather than taking a piecemeal approach, I would like to see legislation that criminalised the taking of photographs of other people without their consent except if incidental to the picture (such as if caught in the background while another picture was being taken) or if taken to serve a public interest such as to help identify someone committing crime or as part of news reporting. Taking a photograph without consent for sexual gratification purposes could then be an aggravating factor in any sentencing. Of course, we know that many of those responsible for taking and sharing inappropriate images of others are under 16, as are many victims, but that should not be a reason for criminalising behaviour that is unacceptable and causes real distress to victims.

  • Brad, in a world of social media how do you define news reporting?

  • This seems to be a bit of a “we just passed a bill but we did an inadequate job” tale.

    Unlike claimed it is not an “upskirting” law it is a voyeurism law. If that law had defined as not photographing body parts that have been intentionally covered by the wearer, the previous bill would have been fine.

  • Brad Barrows 28th Jul '22 - 3:36pm

    Fair point. Hopefully our smart MPs will be able to work out appropriate wording that is capable of distinguishing between the public interest taking of photographs of people without permission, and cases that are not ‘public interest’.

  • “smart MPs”

    That is a good one… well done.

    An assumption of privacy where a reasonable person would expect one would be reasonable, but you are going to want to separate that from voyeurism laws.

    It is not reasonable to ban photographing/filming someone walking down the street automatically. However, there may be examples where you could assume an expectation of privacy. For example photographing someone at a funeral or the site of an accident where they are seeing a loved one die would expect to have some privacy. Also, things like a religious person readjusting clothing designed to cover their face or hair.

    But an outright ban is too far. Think of someone gathering information on others as part of a civil lawsuit. It is unlikely to be a crime they are concerned with but it may also be a perfectly legitimate activity.

    Even some behaviour which someone may record may, on its own, not constitute a crime but when taken with other activity may become so. Stalking or harassment are often this type of situation.

    Also, some people may record an interaction with other people in order to protect themselves from future claims. You see people record themselves when they are stopped by the police as they want the comfort of having their own record of the interaction that can be used later. Or dash cams, that pick up incidents people rely upon for insurance purposes.

  • A concern with Wera’s proposal is that current laws *do* outlaw this behaviour *if* it is done to “cause humiliation, alarm or distress to the victim or to obtain sexual gratification”.

    The Law Commission’s proposals would remove the need for there to be intent. Surely though proving intent is an essential element in a criminal offence?

  • Marco
    Thanks for pointing this out. I hadn’t looked at the LC report until you flagged this issue. It is interesting to note that the approach of strict liability is the same bad idea that was put in to anti-CP laws resulting in the ridiculous prosecution of Robyn Williams. That case showing why any suggesting of that has to be really scrutinised.

    The LC summary information all suggest that they are proposing strict liability, however in the report it appears they are applying a negligence standard. It is odd to write the summary this way, it is a very important distinction.

    The installing offence looks rather unclear, particularly as negligence could give rise to issues of people having security cameras in their own homes, this looks like intent should applied but it only relies upon the negligence standard of the original offence.

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