When I saw the recent government proposals to create the new offence of ‘disclosing private sexual photographs and films with intent to cause distress’ I labelled them as {‘Revenge Porn Legislation’ when posting them on the SCL site: http://www.scl.org/site.aspx?i=ne38913}. And I see that everyone else in the media, and that includes the legal media, seems to be doing the same. But that is not what the proposals cover – the tin may say ‘revenge porn’ but the contents are quite different.
Let’s start with ‘revenge’. There is nothing that requires the motivation of ‘revenge’ in the proposed legislation. The required intent is to cause an individual distress. If we were looking at ‘revenge’ there would surely be some requirement that the discloser had a relationship with the individual who is the subject of the sexual photograph or film. There is nothing so much as hinting at that in the proposals, although one proposed sub-clause might be directed vaguely in that direction (see below).
What about ‘porn’? We are certainly not talking about ‘porn’ as it appears on the modern Internet. I suppose we might be talking about ‘porn’ as it was defined in my youth (partly spent scouring Fleetwood’s second-hand book and magazine shop for a glimpse of something naughty). Certainly a ‘sexual photograph or film’ will cover 21st century porn, but it will cover a lot more besides. For example, a photograph taken on the Playa Nudista may well be sexual (as defined for this purpose) and, perhaps surprisingly, may well be ‘private’ in the terms defined in these proposals – but it is certainly not ‘porn’.
What worries me about the label is that it may define reactions. There is plenty of room for debate as to whether the proposals are A Good Thing or Pre-election Posturing, or indeed both. But, once we accept the label, we make it hard to have a sensible debate about the pluses and minuses of the actual proposals. I see that the House of Lords has already nodded through these proposed amendments despite its own Communications Committee recently declaring that no new laws are needed. It is a brave politician that demurs about, let alone obstructs, a law to stop ‘revenge porn’.
We have had a recent example that should have taught us all a lesson. As we all know, the ‘right to be forgotten’ as defined in the Google Spain case is not actually a right to be forgotten. But I think a lot of initial reaction to it, and some deeply entrenched positions, were influenced by that label. Since the alternative labels, such as the ‘right to be de-listed’ or ‘the right to not to be reminded too prominently’, tend to be totally lacking in appeal, we are stuck with RtbF, and stuck with boring most people by insisting on giving a convoluted explanation of why it’s not really the right label.
(Given that {SCL is considering a name change: http://www.scl.org/site.aspx?i=bp38882}, perhaps it is a good time to be reminded of the importance of labels.)
For my part, I promise to do better when creating headlines and think twice. Next time I will take a tip from Ronseal and read the effect and gauge the reality before applying the label.
{b}Some Random Thoughts on the Legislative Proposals{/b}
1. The proposals define ‘private’ thus:
{i} ‘A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public’.{/i}
So my nudist beach example does seem to be covered as nudes are not something we ‘ordinarily’ see in public. That seems to me to be a definition in need of much further work and some expansion.
2. The definition of ‘sexual’ is as follows:
{i} ‘A photograph or film is “sexual” if—
(a) it shows all or part of an individual’s exposed genitals or pubic area,
(b) it shows something that a reasonable person would consider to be sexual because of its nature, or
(c) its content, taken as a whole, is such that a reasonable person would consider it to be sexual.’{/i}
While (b) seems to leave a lot of room for common-sense (which I applaud), (a) leaves none and (c) probably leaves too much. Given that this is a {i}criminal offence{/i} and we are in the 21st century, I think I would prefer the list if ‘or’ were ‘and’ – provocative topless photos or poses with lollipops would not then be covered but these are more likely to be embarrassing than distressing.
3. The key element in the proposed offence is as follows:
{i} ‘It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made—
(a) without the consent of an individual who appears in the photograph or film, and
(b) with the intention of causing that individual distress.’{/i}
I anticipate that we will see an amendment here. As things stand, the intent has to be to cause the individual in the pictures distress. But in a teen sexting situation, parents might well be the ones targeted. Consider too this extreme scenario: A, a beautiful 18-year-old girl, is brutally murdered by X; A’s boyfriend B cashes in on her tragic fame and sells intimate pictures to the media or a porn site. There’s a ‘something must be done’ scenario if ever there was one. And the width and duration of ‘consent’ is a minefield.
4. One proposed clause has me completely thrown me and I would love to get some comment on it. It provides as follows:
{i} ‘A person charged with an offence under this section 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.’{/i}
That stands criminal intent on its head. Perhaps this is as close as we get to the issue of motivation – is this an attempt to limit to ‘revenge’. I really don’t understand this clause but I am sure that it will make the job of the CPS a lot tougher. They may have to prove maliciousness verging on evil!
