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Revenge pornography and grounds for prosecution

5 September 2019

Following a recent case where an ex-boyfriend was convicted for distributing an intimate video of his former girlfriend, which led to her suicide, the criminal law experts at Morgan Rose explain the grounds of the new section 33 offence and what actions a victim of revenge pornography would need to take.

The devastating effects that the distribution of intimate images over social media can have on people’s lives were demonstrated in a recent case where a university graduate took her own life after her ex boyfriend sent a video to his friend of her performing an intimate act on him in a telephone box.

Threats to send the video to her family and “destroy her” ultimately led to her suicide. The ex boyfriend was, in this case, prosecuted to conviction.

Prior to the implementation of section 33 of the Criminal Justice and Courts Act 2015, the English Criminal Law provided little to deter such conduct and it was difficult to prosecute. Offences under the Malicious Communication Act and Harassment legislation existed but did not obviously cover this type of behaviour. This relatively new offence was the government’s first real attempt to deal with what has become known as “revenge pornography” and to provide sanction to deal with the humiliation and embarrassment that the distribution of such images causes.

Section 33 – dealing with revenge pornography

Section 33 of the Criminal Justice and Courts Act 2015 creates an offence of disclosing private sexual photographs or films without the consent of an individual who appears in them and with intent to cause that individual distress.

A person will only be guilty of the offence if the reason for disclosing the images, or one of the reasons, is to cause distress to a person depicted in the photograph or film. The offence would cover those who forwarded or re-tweeted the images. In any event the intent to cause distress must be proved. If the intent in distributing the images was solely as a joke then no offence is committed.

The offence is triable either way (by the Magistrates or by a Judge and Jury at the Crown Court) and carries with it a maximum sentence of two years’ imprisonment.

What is meant by “disclose” and “photograph or film” are set out in section 34 and the definitions of “private” and “sexual” are given in section 35 of the Criminal Justice and Courts Act 2015.

The offence is drafted so that it only applies to material which looks photographic and which originates from an original photograph or film recording. This is because the harm intended to be tackled by the offence is the misuse of intimate photographs or films.

Images on websites hosted in other countries

There may, in some instances, be issues of jurisdiction where images were uploaded onto websites hosted abroad. However, if the substance of the offence was committed within the jurisdiction it would be possible for the offence to be committed. The test is set out In R v Smith (Wallace Duncan) (No.4) [2004] which held that an English court has jurisdiction to try a substantive offence if “substantial activities constituting the crime take place in England”; or “a substantial part of the crime was committed here”. This approach requires the crime to have a substantial connection with this jurisdiction.

Defences for revenge pornography

There are a number of defences provided for in the Act as follows:

Section 33(2): It is not an offence to disclose the photograph or film to the individual who appears in the photograph or film (mentioned in Section 33(1) (a) and (b)).

Section 33(3): It is a defence if the defendant reasonably believed that the disclosure was necessary for the investigation, prevention or detection of crime.

Section 33(4): It is a defence where a person discloses material in the course of or with a view to the publication of journalistic material so long as the person concerned reasonably believed that the publication in question was or would be in the public interest.

Section 33(5): It is a defence where the defendant reasonably believed that the material was previously disclosed for reward and had no reason to believe that the previous disclosure for reward was made without the consent of the individual.

Section 33(8): A person charged with an offence is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure.

Have you been a victim of revenge pornography?

If you have been affected by the disclosure of intimate images without your consent, our criminal law experts at Morgan Rose can help you to pursue a private prosecution against the perpetrator(s) as well as claim for damages, get an injunctive relief and get the images removed.

Please contact Gary Lesin-Davis to discuss your personal situation – call 0207 242 2520 or click here to send an email.

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