Understanding Revenge Porn Laws: Legal Insights and Case Study

What is Revenge Porn?

Revenge porn is a form of image based sexual abuse.  This area of the criminal law has been growing in recent years, largely due to the internet and other technological advances.  Image based sexual abuse also includes Upskirting, Downblousing, Deepfake Pornography and Cyberflashing.   Revenge porn, in particular, refers to the taking, making or sharing of intimate images without consent. 

The term Revenge Porn can be somewhat misleading.  This is because not all private or sexual images are shared online for the purposes of revenge.  Also many images which might fall foul of this law might not be considered to be pornographic in the ordinary meaning of that word.  However, Revenge Porn is the term that has been adopted by the media and the term that most people recognise when they consider the act of sharing private images without consent and which the criminal law now seeks to prohibit. 

Is Revenge Porn a new criminal offence?

The advent and widespread use of the internet some 25 years ago and the subsequent ubiquity of social media has brought focus on the harm that can be done by the sharing of private sexual images.  A significant number of websites exist solely or primarily for the purpose of sharing private sexual images.  As such, an image can be shared by one person on one occasion but end up being made available to millions of viewers online. 

Image based sexual abuse is not new.  For example, the creation, distribution and possession of indecent images of children has been a specific criminal offence since 1978.  However, the sharing of private sexual images did not become a specific criminal offence until 2015.  Prior to this offence coming into effect, the police had to consider whether the sharing of sexual images without consent amounted to one of a range of pre-existing but not purpose-built offences. 

Blackmail?

A threat to disclose private sexual images of someone might amount to blackmail, where that threat is coupled with an unwarranted demand.  However, many instances of sharing private sexual images do not include a specific demand and so this offence would not apply. 

Harassment or Stalking?

In years gone by, the police have used other criminal laws such as the Protection From Harassment Act 1997 to tackle such behaviour.  However, this would only be the case where the sharing of a private image formed part of a course of conduct which was likely to cause harassment, alarm or distress to another.  As such, a single act of sharing an image could not be prosecuted in this way. 

Malicious Communications?

Equally, the sending of an indecent and grossly offensive image might have been prosecuted under the Malicious Communications Act 1988.   That law requires the police to prove that the person sharing the image intended to cause distress or anxiety to someone else, which might not always be the case. 

The Communications Act 2003 could also be used where a message is sent that is grossly offensive or of an indecent, obscene or menacing character, when the sender knows or is aware that the message is offensive.  However, that law only applies where a public electronic communications network is used.  As such, it does not capture the disclosure of hard copy images or the sharing of an image on a private network or sharing by device-to-device. 

The potential gaps in the criminal laws available to the police, as highlighted by the proliferation of the internet, eventually led the Government to consider a purpose-built law, designed to tackle revenge porn specifically. 

What is the criminal offence relating to Revenge Porn?

A new offence was created by s33 Criminal Justice and the Courts Act 2015.  This created an offence of disclosing private sexual photographs and films with an intent to cause distress. 

The offence came into effect on 13^th April 2015. 

The law was amended, and further expanded, in 2021, to include threats to disclose such images.  This change came into effect on 29^th June 2021. 

The offence contrary to s33 requires the following to be proved:

• Person A discloses or threatens to disclose a private sexual photograph or film in which Person B appears;
• By disclosing the image, Person A intends to cause distress to Person B; and
• The disclosure is (or would be) made without Person B’s consent.

The offence of threatening to disclose a private sexual image can be committed even where the image itself does not exist or where there is an image in existence but it is not a private sexual image.

What does the Revenge Porn offence not cover?

S33 specifically states that it is not an offence to disclose, or threaten to disclose, the image to Person B themselves. 

This offence does not cover the disclosure or creation of “deepfake” images which transpose Person B’s face onto a sexual image of someone else. 

An intention to cause fear or alarm is not specifically covered by this law.  The only purpose that will be captured by the offence will be to cause Person B distress. 

Person A may have a number of purposes in sharing the private sexual image but if none of those purposes is to cause Person B distress, then the offence will not have been committed.  In other words, if Person A was reckless as to the distress that Person B might be caused, that will not be enough to render the act an offence. 

What is the sentence for committing the Revenge Porn offence?

The relevant Sentence Guideline for the offence under s33 requires the court to consider a range of factors to determine the offender’s culpability, as follows:

• Whether the conduct was intended to maximise distress and/or humiliation
• How widely the images were circulated
• Whether the offence involved significant planning or was particularly sophisticated
• Evidence of repeated efforts to keep the images available for viewing

The sentencing court must then consider the level of Harm caused to the victim by weighing up the following factors:

• The extent of the distress caused
• Whether psychological harm was caused
• Any practical impact on the victim

The starting point for an offence falling in the top category of Culpability and Harm will attract a start point sentence of 1 year’s imprisonment, albeit that the range of sentence includes up to 18 months’ imprisonment.  An offence falling into the lowest category of Culpability and Harm will attract a low level Community Order. 

A Case Study

A female in her early 30’s, had been accused of sending naked photos of her ex-partner to one of her close friends.  The friend had forwarded the images to another friend who had, in turn, sent them to her boyfriend.  The boyfriend received the images whilst stood next to his mate in a bar.  The mate in the bar just happened to be the subject of the photos.  “Is this you by any chance?”  he asked his mate.  Knowing where the images must have originated from, the complainant swiftly contacted the police asserting that he was the victim of a revenge porn offence. 

She was invited to attend the police station for an interview under caution.  She instructed Old Bailey Solicitors to represent her during the interview process. 

The client accepted that she had taken the photos in question and that she had sent them to her friend, shortly after she had broken up with her ex-partner.  She conceded that she did not have her ex’s permission to share the images.  However, and importantly, the client denied that she had sent the images intending to cause her ex-partner any distress.  In fact, she had not expected her friend to share the images with anyone else and she certainly had not anticipated that her ex might discover that the images had been shared at all. 

Our client explained that she had shared the images with her friend simply because she thought they were funny and that her friend would almost certainly find them amusing too. 

Our client did not intend the images to find a wider audience.  She did not realise that her friend was friends with someone else, whose boyfriend was a close mate of the complainant.  She had not posted the images to the internet and had simply expected her friend to see them, probably laugh to herself and then delete them.  Importantly, our client had not intended to cause her ex partner distress.  In fact, she had fully expected him to be none the wiser.  As such, she was not guilty of the offence as the law is currently drafted. 

We advised our client to provide a full account during interview and to provide the police with her friend’s contact details so that she could be spoken to.  While our client was subject to investigation, we made written representations to the police on our client’s behalf and a statement was taken from our client’s friend, who corroborated their conversation.  It transpired that her reason for sending the images on had also been because she considered them to be inherently funny. 

The police were persuaded not to prosecute our client. 

While the complainant had been caused a degree of embarrassment, that had not been our client’s purpose or intention and so the correct decision had been reached. 

If you have been arrested or are facing investigation for an offence related to revenge porn or any other image based sexual abuse allegation, contact Old Bailey Solicitors for expert assistance and considered advice.  Old Bailey Solicitors will provide you with a bespoke service which is designed to help you through a period of personal crisis.