This article was written for Queen Mary Legal Advice Centre's Blog.
The uploading of intimate still or moving photography of former sexual partners, an act commonly referred to as ‘revenge porn’, is becoming an ever-increasing problem. Official statistics are yet to be released but, according to eight British police forces, there have been 149 allegations of revenge pornography related crimes in the last two-and-a-half years. Few of which have led to convictions. Victims, across numerous jurisdictions, include high-profile celebrities such as Jennifer Lawrence and Kelly Brook, whist many more non-celebrities are finding their intimate photography online, hosted by dedicated sites such as www.myex.com. Such sites also make it difficult to have the images removed and this allows the humiliation to continue. Publishing such images has a negative impact upon the victim’s ‘well-being, career and standing within the community [whilst] affect[ing] future relationships and naturally attracts criticism of the victim rather than the perpetrator.’ It is also used to ‘out’ those who opt to conceal their sexuality, causing humiliation and distress. This also attracts criticism of the victim, especially given society’s homophobia. This article will identify, and provide an analysis of, the current law governing ‘revenge porn’ and make comment on the proposed introduction of a specific criminal offence for uploading intimate photography of another without consent. It will also make suggestions as to how the issue of proving consent can be solved whilst also dealing with the problem of anonymity. It will also argue that the criminal law should also make website administrators criminally liable.
2. Internet Jurisdiction
A discussion of internet jurisdiction is, however, necessary, as a preliminary issue, given that boundaries do not exist in the worldwide web. Websites can be accessed in many different countries, creating complexities when problems arise. Internet users can access information from various jurisdictions without knowing the exact source. Any activity on the internet, therefore, if illegal may attract legal action in numerous jurisdictions where either the user resides, the server hosting the material is located and the victim lives. The ‘sovereign state’ retains the power to use its domestic law in cases involving its legal subjects, especially its criminal law, unless otherwise agreed by way of international convention. Conflict between states may occur when numerous states asserts jurisdiction over a particular criminal act. States, in such instances, may agree on mutual assistance. States can, if an agreement between states cannot be reached, submit a case to the International Court in The Hague. This is, however, unlikely. The United Kingdom, as a result, can enact domestic laws to deal with ‘revenge porn’.
3. The Civil Remedies
Victims, in the United Kingdom, can find redress in with a civil claim and in the criminal justice system. A civil action in respect of private information can be made when intimate photography is uploaded onto the internet. This is because the action is established when a person is given information that is ‘fairly and reasonably’ regarded as confidential or private. An action in respect of private information is very much established in line with Article 8 of the European Convention of Human Rights, the right to a private and family life, which is accessed in the UK through the Human Rights Act 1998. The basic understanding of ‘private life’ is that what occurs in the home. Article 8 does, however, have two separate but related fundamental values. The first, protecting the home and personal communication from official snooping, interference and entry without good reason and personal space in all communication and life. The second relates to the physical and psychological private space within which individuals can develop and relate to other around them. ‘Revenge porn’ is likely to constitute the autonomy arm of Article 8 as photography taken without consent will violate the right to private life. This is particularly probable if the person publishing the revenge porn knew or ought to have known that, in light of all the circumstances of the case, there was a reasonable expectation, by the victim, that the images would be kept confidential and private. There is such an expectation that sexually explicit images shared with a partner will remain private and confidential rather than publically available and will not be "known by anyone other than the participants" There is also a significant duty of confidentially between intimate couples. ‘Revenge porn’ violates this duty of confidentiality. Even on the rare occasion that a public interest defence could be used, the ‘gory details’ will go beyond the boundaries of the defence. There is also a civil claim for copyright infringement as the copyright of such images is owned by the victim. The claim can be brought against legal entities or person publishing or sharing images owned by others. This can also lead to criminal sanctions when another publishes such images for profit.
There are a number of difficulties with making a civil claim, according to Mitchell. The first is the fact that the claimant is required to pay the legal costs with the hope that they will be refunded once she wins. This is not, however, guaranteed and, therefore, a big financial risk. Many victims, furthermore, would not have the financial resources to bring a claim. There may also be an impossible burden on the defendant to pay the damages ordered by the court. Damages, secondly, cannot be truly quantified to right the humiliation and suffering caused by the publication of such images. In regards to a claim in copyright infringement, there is also the problem of identifying the person that submitted the photography and, therefore, it can be difficult to bring a claim against that person given that the publisher is often afforded anonymity.
4. The Existing Criminal Law
The criminal law, therefore, plays an important role in protecting people from such behaviour. ‘"The purpose of the Criminal Justice System … is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent." Publishing revenge porn is also a crime. The Crown Prosecution Service, in light of recent cases and subsequent calls for legal reform, has published new guidance as to which offences the perpetrator should be charged. Plans to create a new criminal offence, with a maximum punishment of 2 years, have also been revealed. The Crown Prosecution Service’s new approach of charging under sections 4 and 62 of the Sexual Offences Act 2003, where intimate photography is used to coerce the former partner into continuing sexual relations, will have limited effect. The former will be engaged in successful attempts and the latter in failed efforts. Section 4 protects against a person from having to engage in sexual activity without consent. Section 62, on the other hand, prohibits committing an offence with intent to commit a sexual offence.
This new approach, however, is limited to situations where the perpetrator uses the photography to continue sexual activity with the victim. This represents a small number of cases as using the photography to degrade and humiliate is more common. Law reform, therefore, is a more appropriate means of deterrence. The statute book already has provisions that protect against such behaviour but they are outdated and many precede this trend and, indeed, common use of the internet.
Section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 are commonly used provisions that prohibit communications which are grossly offensive, indecent, obscene or false. The former requires intention to cause distress or anxiety to the recipient but the communication does not have to be received. This Act was evidently enacted prior to popular use of the internet and is not designed for protecting against intimate photography uploaded by former partners. It also holds a relatively light punishment as those found guilty will be to imprisonment for a term not exceeding six months or to a fine or both.
Section 127 of the Communications Act 2003 acknowledges the use of the internet and social media. It protects against the ‘sending or causing, through a "public electronic communications network" a message or other matter that is "grossly offensive" or of an "indecent, obscene or menacing character"’. It is also an offence, under this provision, to send or cause to be sent a false message "for the purpose of causing annoyance, inconvenience or needless anxiety to another". This explicitly includes messages sent on Twitter. This too, however, is slightly detached from revenge pornography as it is not a message. It is the publication of private and intimate photography on the internet, which is largely a public place, to hurt, humiliate and get revenge against former sexual partners.
Relevant offences of harassment and stalking, under the Protection from Harassment Act 1997, are also off the mark. Harassment is committed when repeated attempts are made to impose unwelcome communications or contact upon the victim in a way ‘that could be expected to cause distress or fear in any reasonable person.’ Stalking, on the other hand, includes attempting to contact or successfully contacting, a person by any means. These offences demand a ‘course of conduct’ requiring conduct on at least two occasions as part of a sequence of events. Communication sent via social media is just one manifestation of a range of unwanted behaviour that is included in a ‘course of conduct’. This is problematic where the uploading of intimate photography is the only act as it is not a sufficient ‘course of conduct’ to amount to harassment or stalking. It is too unlikely to be considered ‘contact’ when using its natural meaning.
5. The Criminal Law Going Forward
With outdated laws and new guidance that only covers a small number of cases, a new criminal offence, designed to protect against revenge pornography, is required to combat the issue and make a stand against its perpetrators. The current law is incapable of tackling the problem without such reform. Arguments could be made for expansion of the current laws. This would, however, enjoy limited effect, as such provisions were not designed to prohibit such behaviour. The Communications Acts were designed for communications rather than the uploading of intimate behaviour. The Malicious Communications Act makes it an offence to send a letter, electronic communication or article of any description conveying an indecent or grossly offensive, a threat or false information. ‘Revenge porn’ does not fit naturally into the remit of the Act, even with the amendment to include electronic communication as it involves images. This could be considered as communication but this would cause the law to become technical as ‘communication’ would attain an unnatural meaning. It does fit more comfortably with ‘other matter that is grossly offensive or of an indecent, obscene or menacing character’ covered by the section 127 of the Communications Act 2003. This, however, does not naturally prohibit this new phenomenon as it refers to public electronic communications network. The uploading of intimate photography does not seem to fit into the natural meaning of ‘public electronic communications network’. There is a risk of confusion when the law becomes too technical and words attain specialist meaning. It is also difficult to establish a ‘course of conduct’ required for the offences of harassment and stalking, making it impractical to extend the offences.
The law needs to specifically state that the uploading of intimate photography without consent is illegal and will not be tolerated. This is, however, not for the common law to find a solution through case judgement. Parliament needs to place an offence in the statute book that governs this unfortunate phenomenon. The amended Criminal Justice and Courts Bill is a step forward in achieving this aim as it makes a criminal offence ‘for a person to disclose a private sexual photograph or film […] without the consent of an individual who appears in the photograph or film, and with the intention of causing that individual distress.’ The penalty for this offence exceeds those under the Communications Acts as a person guilty of the new offence faces imprisonment for up to 2 years.
Significant obstacles remain, however, that need to be overcome. The first is the difficulty in proving that the images were uploaded without consent as evidential hitches are foreseen, especially if the burden of proof is placed on the accuser. This would require the victim to prove that she did not provide consent. This could be achieved by looking at previous correspondences and text that accompanies the images. To avoid the evidential difficulties that arise with offences that hinge on consent, such as rape and other sexual offences, it is suggested that the burden of proof is split into two parts. It is proposed that the victim would bear the burden of proving that the images were provided by the defendant but the defendant ought to have to prove that the uploading was consensual. This article is aware that this would be a different approach to most criminal offences but it has sufficient safeguards in place to protect against false allegations in that the victim still has to prove that it was the defendant provided the Images.
This, in turn, leads into the second problem that is found in the fact that people who upload the said images are often provided with anonymity. This makes it difficult to locate the source, which is required in order to commence criminal proceedings. An obligation, in order to solve this problem, ought to be placed on the website administrators to provide information as to whom provided the images. Such information should include a full name, an email address and an (IP) Internet Protocol address: false information can be provided for the name and email address but the IP address remains true. Failure to comply should be met with a charge of aiding and abetting in the new offence, under section 8 of the Accessories and Abettors Act 1861, which, as amended, states that:
Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.
This approach is necessary to truly suppress this despicable behaviour. Allowing such sites, that are dedicated to ‘revenge porn’, to continue to operate without imposing such responsibilities allow such spite and humiliation to continue. Such sites should also be held accountable for publishing the images despite knowing what they contain and how they were obtained. The owners of such websites ought to be held criminally responsible for the publication of such photography. The Criminal Justice and Courts Bill is an improvement to the current situation but it is insufficient as only a person disclosing such photography is liable for the new offence. Any website that knowingly publishes revenge porn should also be liable if the problem is to be seriously tackled. It is suggested that there be another offence as follows:
The owner of any website that knowingly or with reasonable suspicion publishes a private sexual photograph or film, without the consent of the individuals who appears in the photograph or film, will be liable for an indictable offence with a maximum sentence of 2 years.
There are reasonable concerns when making operators liable. Analogy is made to the law of defamation in addressing such concerns and adopting this new approach. The law is sceptical in regards to making websites and search engines liable for defamatory statements. A claim in defamation cannot be ‘brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.’ It is a defence, under section 5 of the Defamation Act 2013, ‘for the operator to show that it was not the operator who posted the statement on the website [… unless] (a) it was not possible for the claimant to identify the person who posted the statement (b )the claimant gave the operator a notice of complaint in relation to the statement, and (c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.’
It is argued that the law should not adopt such a soft approach in relation to the criminalisation of ‘revenge porn’. Websites are often dedicated to publishing such photography and should be punished accordingly. It is submitted that the publication of ‘revenge porn’ has a greater severity than defamatory statements as ‘revenge porn’ is posted in spite and infringes upon the most private lives of the victims. Websites need to be held accountable.
It is hoped that the Criminal Justice and Courts Bill will end the confusion caused by the application of outdated laws and will serve as an added deterrence against ‘revenge porn’ and protect the privacy of the individual. It is feared, however, that it may not go far enough. Making the providers of such images is a step forward and will deter people from posting images but they are often afforded anonymity, making the individual from being identified and preventing justice from being served. Issues of proving a lack of consent are also foreseen but placing the burden of proof onto the defendant can solve them. Safeguards would be in place by giving the victim the burden of proving that the defendant provided the images.
Websites should also be held liable as many knowingly publish the said images. It is proposed that a criminal offence be created to impose liability. Websites should also have an obligation to provide information regarding to whom provided the images. Only by taking this extra step can the criminal law truly stamp out this disgusting behaviour that abuses the trust the provider was given, exploits an individual’s private life once relationships end and is used to ‘out’ those who are not open about their sexuality. Until robust action is taken, individuals are at risk of severe humiliation and distress. This affects the ‘well-being, career and standing within the community [whilst] affect[ing] future relationships’. It also has a detrimental effect on the professional standing of that person. The law cannot continue to allow such victimisation of individuals.
 Mitchell, J (2014), ‘Censorship in cyberspace: closing the net on "revenge porn"’ Ent. L.R. 283, p10;
 Dwivedi, S. ‘Jurisdictional issues in Cyber Crimes’ [accessed at https://www.academia.edu/3700793/Jurisdictional_Issues_in_Cyber_Crime on 9th November 2014)
 Council of Europe (2009), ‘Cybercrime and Internet Jurisdiction’ [accessed at http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/T-CY/2079_rep_Internet_Jurisdiction_rik1a%20_Mar09.pdf on 9th November 2014], p4;
 Attorney-General v Guardian Newspapers Ltd (No.2)  1 AC 109 at 281 per Lord Goff
 Campbell v Mirror Group Newspapers Ltd  UKHL 22 at  per Lord Nicholls;
 R (on the application of Countryside Alliance and others and others (Appellants)) v Her Majesty’s Attorney General and another (Respondents)  UKHL 52
 Ibid at  per Baroness Hale;
 Douglas v Hello No.1  2 WLR 992;
 Murray v Big Pictures (UK) Ltd  1 FLR 704 at ;
 Campbell (Appellant) v. MGN Limited (Respondents).  UKHL 22
 A v B & C  EWCA Civ 337 at  per Lord Woolf C.J;
 Mitchell, J(2014), p4
 Sections 1 & 9 of the Copyright, Designs and Patents Act 1988
 Ibid, s16 and s18;
 Ibid, s107;
 Mitchell (2014),
 Centre for Crime and Justice Studies at www.crimeandjustice.org.uk/resources/purpose-criminal-justice-system [Accessed 9th November 2014].
 Crown Prosecution Service (2014), ‘Guidelines on prosecuting cases involving communications sent via social media’ [accessed at http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/ on 08/10/14);
 CPS (2014), para 45;
 See Chambers v DPP  EWHC 2157 (Admin);
 CPS (2014), para 31;
 Chambers v DPP  EWHC 2157 (Admin);
 CPS (2014), para 20;
 Section 1 Malicious Communications Act 1988; it is also an offence to send information the sender believes to be false;
 Clause 33 of the Criminal Justice and Courts Bill;