A review of the court’s treatment of revenge pornography
With the growing use of digital technology to bring people closer together, so too do we see the rise in the use of technology to hurt and humiliate other people. Part of dating rituals can often include the sending of explicit ‘selfies’ as a way to entice and to build trust. However, when a relationship turns sour, some individuals seek to express their hurt by uploading sexually explicit images to the internet to humiliate and embarrass those who once shared them.
The offence
In April 2015, the Criminal Justice and Courts Act 2015 created a new criminal offence of Revenge Pornography. Revenge pornography is the sharing of private sexual materials, either photos or videos or recordings, of another person without their consent and with the purpose of causing distress, humiliation and or embarrassment to the victim. The images are sometimes accompanied by personal information about the subject, including their full name, address and links to their social media profiles.
The offence applies to the sharing of material online and offline. This can include sharing by text and email, uploading images to the internet, and also showing someone the image. To fall within the offence, a photograph or film would have to be private and sexual. This could include an image that depicted an individual’s exposed genitals, or a picture of someone who is engaged in sexual behaviour or posing in a sexually provocative way.
The typical offence is an ex-partner uploading images to Facebook or sending it to friends or family after a relationship has ended. Once the images are on the internet, there is no control over how far they will spread and who will see them. Sexually explicit images shared on social media can end up featuring on revenge pornography websites or sold on pornography websites. There are also internet forums and message boards where members win accolades for driving their victims to self-harm or suicide.
Two-thirds to three-quarters of those calling the Revenge Porn Helpline are woman. Of the calls relating to male victims, approximately 40% are from gay men. Around half of all male cases involve ‘sextortion’ – threatening to release sexual images as a form of blackmail.
Dealing with offenders
When the law was introduced, some felt that it would be difficult to show an intent to cause distress to the victim. Intent can often be inferred in a number of ways, looking at the kind of image and the way the image was distributed, and the nature of the relationship before the image was distributed. However, even if the offending does not fall within ambit of revenge pornography, individuals can still be prosecuted under s127 of the Communications Act 2003. S127 makes it can offence to send or cause to be sent through ‘public electronic communications network’ a message that is ‘grossly offensive’ or of an ‘indecent, obscene or menacing character’.
Where the images have been taken when the victim was under 18, prosecutors will consider offences under the Protection of Children Act 1978. In more serious cases, where the images are used to coerce victims into further sexual activity, other offences under the Sexual Offences Act 2003 will be considered.
When sentencing offenders, courts have generally found that the offences cross the custody threshold. David Jones from Liverpool was sentenced to four months imprisonment after posting 12 sexual photographs and video of an ex-girlfriend online. The relationship had ended 20 years ago but with developing technology he was able to share the material. Mr Jones published the woman’s job, address and details of the school she attended online – and some of the footage ended upon of pornography sites. Luke Brimson, from Bristol, was given a six month suspended sentence after he printed off and handed out intimate pictures of a woman at a local supermarket.
Paige Mitchell, the first woman convicted of the offence, pleaded guilty to committing revenge pornography after posting four explicit pictures of her girlfriend on Facebook after a row. The photos were online for 30 minutes. She received a suspended sentence due to the length of the time the pictures had been online. Two weeks ago, Thomas Ormsby, 18, was sentenced to four months imprisonment after posting a sexually explicit video online because he wanted his ex-girlfriend to suffer.
What still needs to be done
Revenge pornography is a violation of trust and its purpose is to publicly humiliate and claim ownership of other’s body and or sexual activity. While it is positive that prosecutions are on the rise, more needs to be done to raise awareness of the offence and to encourage people to report it and to support a prosecution. More also needs to be done to raise awareness of what falls within the ambit of revenge pornography and malicious communications. Young people and teenagers who are more accustomed to sharing of images in a relationship, need to be advised that sending on a sexually explicit image to another person and mocking the person in the photograph either as a joke or maliciously, can run the risk of them committing a criminal offence.