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“Baby, it’s Just a Picture!” - A Critique of Revenge Porn Laws

October 28, 2019

Maria Sevlievska is a Bulgarian legal academic writing in the UK and US context. She holds an LLB from the London School of Economics and is currently pursuing an LLM in Information Technology Law there. She is an incoming Trainee Solicitor, and previously participated in the creation of the UK’s first student-led Law Review and served as its Editor. 

Is the UK’s criminalization of Revenge Porn satisfactory?

When it comes to the non-consensual sharing of intimate images, the internet is an established accomplice. Not only does it reduce the cost of abuse for perpetrators by offering anonymity and expeditious dissemination, but it also escalates the consequences for victims (Flynn, 2016). The UK has responded by criminalising ‘revenge porn’ via s. 33-35 of the Criminal Justice and Courts Act (CJCA). While this is a step in the right direction insofar as the offense is treated as a criminal wrong, in practice, the law fails its dual purpose of punishing offenders and remedying victims. As such, the UK’s criminalization of Revenge Porn is only partially satisfactory.

Revenge Porn’s criminalization

Revenge Porn merits the CJCA’s criminalization, despite the ignorant deeming it analogous to misdeeds dealt with under the civil law. Its harm plainly exceeds that of a privacy infringement, as it prevents individuals from controlling not only the “flow of information about themselves”, but also theiractual sexual identities (Gillespie, 2015). Moreover, comparisons to disclosures of infidelity or sexuality are misguided, despite likewise resulting in distress and loss of employment. Revenge Porn’s effects are more profound, extending to victims’ bodily autonomy being overtaken. In truth, since Revenge Porn entails a breach of consent, it is easier to parallel to voyeurism or (cyber-)rape - sexual crimes under the Sexual offenses Act 2003 (SOA). Criminal sanction is thus justified so as to signal the offense’s severity, condemn and deter its wicked perpetrators.

Similarly, criminalization is satisfactory since it offers victims genuine redress. It constitutes a formal recognition of the wrong the victims have suffered. This contrasts with the civil law, where reliance on the Obscene Publications Act 1959 (OPA),requires emotionally-vulnerable victims to evidence that their intimate images can “deprave and corrupt” recipients, while the Malicious Communications Act 1988 (MCA) and the Communications Act 2003 (CA)  trivialise Revenge Porn as an ‘offensive communications’ issue (Gillespie, 2015).  Indeed, the CA, depicts Revenge Porn as a victimless crime – with an offense committed regardless of whether anyone receives the sexual image (Id.). Furthermore, criminalization is preferable since reliance on the civil law forces victims to cover the financial costs of litigation, reinforcing the belief that they are somewhat to blame and should ‘bear the consequences’. To secure justice for victims, therefore, Revenge Porn is rightly a criminal wrong.

Revenge Porn’s criminal framework

First, the CJCA framework is unsatisfactory because its force is conditional on a disconcertingly restrictive intent to cause “distress” (s.33(1)(b)). As a consequence, s.33 only captures the fraction of Revenge Porn cases where ‘harm is perpetrated by jilted lovers who want ‘revenge’’ (Flynn, 2016). This is especially problematic in the digital age, where the sexual images’ initial publication is likely to lead to extensive republication by unknown-to-the-victim third-parties (Murray, 2017). The mens rea requirement thus fails the CJCA’s aim of condemning Revenge Porn, as those who non-consensually distribute images for reasons like monetary or social gain, escape sanction under s.33.

Second, the CJCA regime is unsatisfactory because of its failure to appropriately define what ‘consent’ and ‘private and sexual’ images are. Indeed, there is no guidance on the former, other than that it may be ‘general’ or ‘particular’ (s.33(7)(a)). By failing to require victims’ permission for each and every distribution, their rights to limited consent are denied while offenders are gifted a generous loophole (Gillespie, 2015). The CJCA likewise fails to adequately define when the disclosed images can be deemed ‘sexual’. The criterion is overly rigid: if the picture doesn’t feature ‘exposed genitals’, it must appear sexual to a ‘reasonable person’ (s.35(3)(a)-(c)). Coupled with the exclusion of digitally altered images (s.35(5)(b)-(c)), the CJCA thus chooses to ignore victims’ personal experiences of sexuality, only criminalizing breaches of their autonomy insofar as these conform to an arbitrary objective standard.

Third, the Revenge Porn legislation is unsatisfactory for its failure to grant victims automatic anonymity. This wrongly downplays Revenge Porn as less serious than other sex-related abuses, where those harmed benefit from such an assurance. In addition, it results in fewer incidents being reported to the police – with an estimated 68% of victims dissuaded by the risk of being “named-and-shamed” within their local communities (Rackley, 2019). Accordingly, s.33 appears to be performing a symbolic rather than practical role in protecting sexual integrity and deterring abuse.

Conclusion

Whilst the UK’s criminalization of Revenge Porn must be celebrated, the CJCA’s numerous drafting failures diminish the scope of the offense and prevent its categorization as ‘satisfactory’. To effectively deter offenders and compensate victims, the mens rea requirement should be abolished, the law should introduce limited consent and automatic anonymity, and align the definition of a ‘sexual’ image with subjective experiences. Until then, victims will endure in silence and offenders will roam free.

To be most effective it is imperative that the UK revise the relevant sections under the CJCA. Meanwhile, countries such as the United States, who are rapidly adopting Revenge Porn laws in their state codes and statutes, should carefully examine the CJCA’s shortcomings when drafting and revising their own laws.

 

End Notes
  1. Flynn, A. (2016). More than Revenge: Addressing the Harms of Revenge Pornography, Report of the More than Revenge Roundtabl.Melbourne: Monash University.
  2. Gillespie, A. A. (2015). “Trust me, it’s only for me”: “revenge porn” and the criminal law. Criminal Law Review.
  3. Murray, A. (2019). Information Technology Law: Law and Society 4ed. Oxford University Press: Chapter 14
  4. Rackley, E. (2019). Non-consensual sharing of sexual imagery (Revenge Porn). LSE Specialist Seminar, London.
  5. 33(1)(b). (2015). Criminal Justice and Courts Act.
  6. 33(7)(a). (2015). Criminal Justice and Courts Act.
  7. 33(8). (2015). Criminal Justice and Courts Act.
  8. 35(3)(a)-(c). (2015). Criminal Justice and Courts Act.
  9. 35(5)(b)-(c). (2015). Criminal Justice and Courts Act 2015.
  10. 35(b)-(c). (2015). Criminal Justice and Courts Act.