The Law Commission is conducting a review of the existing criminal law as it relates to taking, making and sharing intimate images without consent. In particular, it is reviewing the current range of offences which apply in this area and identifying the gaps in the scope of protection currently offered. It makes provisional proposals with the aim of ensuring that the criminal law provides consistent and effective protection against the creation and sharing of intimate images without consent.
The increased use of smartphones and online platforms has made it easier to take photographs or film, alter or create images and send images to family and friends or the public. This also means that it is now easier to take or make images of others or to distribute images of others without their consent.
Platform liability is outside the scope of the consultation – the Law Commission review is focused on the liability of individuals.
The Law Commission is also undertaking a separate but related project reviewing the communications offences under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003. As part of that project, in September 2020 it published a consultation paper, one aspect of which was cyberflashing: the unsolicited sending of sexual images using digital technology.
The Law Commission believes that a new framework of offences is needed to cover the behaviours identified in its consultation. It says that the proposed framework would provide a more unified and structured approach, providing victims with better protection and ensuring that appropriate orders are available to the courts when dealing with these offences.
In addition to the existing behaviours which are currently criminalised (the disclosure of private sexual images, upskirting and voyeurism), the proposals would, among other things, include sharing an altered image – including sexualised photoshopping and deepfake pornography where the victim’s face is put on the body of a pornographic actor. According to the Law Commission, the vast majority of deepfakes are pornographic.
The Law Commission proposes four new offences:
- A “base” offence which prohibits the taking or sharing of an intimate image of a depicted person where they do not consent and there is no reasonable belief in consent by the perpetrator.
- An additional more serious offence of taking or sharing an intimate image without the consent of the depicted person, with the intention to humiliate, alarm or distress the victim.
- A further additional serious offence of taking or sharing an intimate image, without the consent of the depicted person and the perpetrator having no reasonable belief in consent, for the purpose of either their own or someone else’s sexual gratification.
- An offence of threatening to share an intimate image where the threat is either intended to cause the depicted person to fear that the image will be shared or the perpetrator is reckless as to whether the depicted person will fear the threat will be carried out.
This framework would remove the need to prove an intent to cause distress to prosecute cases.
The Law Commissions also include proposals on victim anonymity and protections, as well as a defence of reasonable excuse which would cover taking or sharing an image if the defendant reasonably believed it was necessary for the purposes of preventing, detecting, investigating or prosecuting crime, for legal proceedings or for the administration of justice; they were taking or sharing for a genuine medical, scientific or educational purpose; or taking or sharing an image was in the public interest.
The consultation ends on 27 May 2021.
