Part Two: Non-Consensual Sharing of Private, Intimate Images
2.1 Recent technological developments mean that it is easier than ever before to take and share pictures with friends, family and the wider world. Unfortunately, a small number of people have used this technology to threaten, harass and abuse other people. This can take many forms, but one which has received particular attention in recent years has been the non-consensual sharing of intimate images, typically of partners or former partners, often referred to as 'revenge porn'.
2.2 This type of activity often involves images which were meant to be private being shared on the internet, often on websites specifically set up for this purpose. There have been cases in which the names and contact details of victims have been posted with the pictures, which can leave the victim fearful for their safety and scared to go out in public. In other cases, threats to publish such photos on the internet have been used by abusive partners or ex-partners to control victims, often as part of a campaign of intimidation or blackmail. As such, this type of activity is often characterised by a motivation to humiliate and can be seen as a form of domestic abuse.
2.3 Depending on the facts and circumstances of the particular case, there are a number of criminal offences which can be used to prosecute people who publish or share private, intimate images of a partner or former partner without their consent. These include blackmail, breach of the peace, threatening or abusive behaviour, stalking and improper use of a public electronic communications network.
2.4 However, there is an argument that, in the absence of an offence specifically concerned with the sharing of intimate, private images, the exact scope of the law in this area remains unclear. Furthermore, victims of this kind of behaviour may not be aware that a criminal offence has been committed against them. Even when a successful prosecution has taken place, a person may consider that prosecution of the perpetrator for an offence such as threatening or abusive behaviour does not fully reflect their specific experience.
Proposal to create a specific offence
2.5 A number of jurisdictions have legislated to criminalise the sharing of certain kinds of private or intimate images of other people without their consent.
2.6 For example, in South Australia, there is an offence of 'distribution of an invasive image knowing or having reason to believe that the other person does not consent to its distribution' . In Queensland, Australia, there is an offence of 'distributing a 'prohibited visual recording' without consent'.
2.7 In Germany, the offence of 'violation of intimate privacy by taking photographs' prohibits unlawfully and knowingly making available to third parties a picture that was created with the consent of another person located in a dwelling or room especially protected from view and thereby violating that person's intimate privacy.
2.8 Several US States, including Arizona, Delaware and New Jersey have also legislated to criminalise the sharing of nude or sexual images without the permission of the person or people featured in them.
2.9 In England and Wales, section 33 of the Criminal Justice and Courts Act 2015 provides for an offence of 'Disclosing private sexual photographs and films with intent to cause distress.'
2.10 The Scottish Government considers that there is a compelling case for creating a specific new criminal offence to deal with this emerging form of offending.
Last year, the Lord Advocate commented that:
"…we can and do prosecute this crime robustly using existing legislation. However, it is a growing problem and specific legislation would send a signal to those who do this that they face jail. Without a specific offence, there is a risk that victims will not come forward because they are unaware that what has happened to them is a crime."
2.11 We consider that a specific criminal offence will send a clear message both to victims of this kind of behaviour and to people who might otherwise be tempted to share intimate images of a partner or former partner without their consent that this behaviour is criminal. A specific offence would also ensure that the person affected has the satisfaction of knowing their own specific experience is reflected in the offence which the perpetrator is convicted of.
8. Do you agree that it should be a specific criminal offence to share private, intimate images of another person without their consent? If no, give reasons
Images covered by the offence
2.12. Jurisdictions which have created offences of this kind have taken different approaches to the kinds of images to which the offence applies, though in all the examples we are aware of, the offence extends only to images which are in some way 'private'. For the avoidance of doubt, where the term 'image' is used in this consultation, we consider this applies equally to video and still images.
2.13 While an offence could be created which criminalised the sharing of any image of a person without their consent, such an approach would have the effect of criminalising much activity which would not typically be thought of as criminal, including news reporting and much routine sharing of images on social networking sites.
2.14 While it is possible to envisage circumstances in which photographs or video files of a person which are not obviously 'private' may be shared with the intention of causing alarm or distress to the person, or indeed where sound files or private written communications are shared for this purpose, it is important to remember that where 'non-private' images, sound files or e-mails, letters or private messages are shared for the purpose of harassing or intimidating the person featured in them, a prosecution using other laws (for example, stalking or 'threatening or abusive behaviour') could be taken, if the facts and circumstances of the case merit it.
2.15 We therefore propose that, as is the case in other jurisdictions which have enacted legislation to address this problem, any specific offence should be restricted to the sharing of images which would be considered to be 'private' or 'intimate'.
2.16 There are of course differing understandings of what might constitute a 'private, intimate image'. However, in practice, where such images have been published or shared with the intent of causing humiliation to the person featured in them, they have typically involved private sexual images - hence the use of the term 'revenge porn' to describe this kind of offending behaviour.
2.17 Section 9 of the Sexual Offences (Scotland) Act 2009 provides for an offence of 'voyeurism', which criminalises a person who observes or records another person doing a 'private act' without consent and without any reasonable belief in consent, in circumstances where that other person would have a reasonable expectation of privacy. Section 10 of that Act defines a 'private act' as one in which :
The person is in a place which in the circumstances would reasonably be expected to provide privacy, and-
(a) the person's genitals, buttocks or breasts are exposed or covered only with underwear,
(b) the person is using a lavatory, or
(c) the person is doing a sexual act that is not of a kind ordinarily done in public.
2.18 We consider that defining the kinds of intimate, private images to be covered by the proposed offence in broadly the same way as that used in the offence of 'voyeurism' would have the advantage of making clear to police, courts, prosecutors and victims exactly what kinds of images are covered by the offence.
2.19 An alternative would be to provide that the offence covers 'private and intimate images' without defining in legislation exactly what kinds of images are covered by the term. Instead, an image would be 'private and intimate' if the subject of the image and the person sharing or distributing that image both knew or ought to have known that it was considered to be so.
2.20 This would have the advantage of ensuring that the law is flexible enough to cover different understandings of what might constitute a 'private, intimate image'. Images that may be private and intimate may not always be 'sexual' images. For example, a Muslim woman might consider a photograph in which she is not wearing a headscarf to be private and intimate.
2.21 However, the potential disadvantage may be that there would be less certainty in law concerning exactly what images are or are not covered by the offence. It may not be immediately obvious to the police, prosecutors and the courts whether any particular image fell within the scope of the offence without investigating the particular context of the individuals involved, although it should be acknowledged that this requirement to consider the backgrounds of the people involved is something that the police have to do at present, for example, when investigating a report of a stalking offence.
9. Do you agree with the proposal that the offence should be restricted to images?
10. Should the types of images that should be covered by the offence should be based on the definition of a 'private act' contained at section 10 of the Sexual Offences (Scotland) Act 2009? Or do you think a definition which defines an image as 'private and intimate' if the person featured in the image and the person sharing the image understand it to be such would be more appropriate?
Circumstances in which the offence is committed - mens rea for the offence
2.22. We have given consideration to the question of the extent to which the intention of a person posting images of another person should be relevant in determining whether an offence is committed.
2.23 The offence concerning disclosing private sexual photographs covering England and Wales, at section 33 of the Criminal Justice and Courts Act 2015, provides that, for an offence to be committed, as well as disclosing the images without consent, the accused must have intended to cause distress to the subject of the images. It is further provided that the intent to cause distress is not proven merely because it was a natural and probable consequence of disclosure.
2.24 We consider that adopting such an approach in Scotland may risk making it difficult to prosecute such behaviour as it would place the burden on the Crown to prove the motivation of the accused person in sharing the images. Moreover, as a matter of principle, where an accused person knew, or ought to have known, that the subject of the image did not consent to its being shared, and that its disclosure would be likely to cause distress, we consider it would be wrong that the offence would not be committed solely because the accused's motivation in sharing the image was not to cause distress.
2.25 On the other hand we think that an offence which criminalised any sharing of a relevant image by a person without the explicit consent of the subject of the image would be too widely drawn. The effect of such a provision would be to criminalise the sharing or disclosure by a person of images of complete strangers, in circumstances where this was done without any intention of causing distress to the subject of those images, and who might have had no reason to believe that the subject of the image had not consented to its being shared. Insofar as such behaviour may constitute a criminal offence, it might be more appropriate to use the offence of 'improper use of a public electronic communications network' at section 127 of the Communications Act 2003.
2.26 We therefore propose that the offence shall be committed where a person shares or discloses a relevant image in circumstances where they know or ought reasonably to have known that the subject of the image would be caused alarm or distress by its distribution or sharing.
2.27 As the offender's intent, in sharing such images, is very often to cause their victim to suffer humiliation or distress, it is possible that they may achieve the same aim simply by threatening to share such images. We are aware of individual cases in which this has occurred within the context of an abusive relationship where an offender uses the threat to share such images to silence the victim and deter them from reporting abuse.
2.28 In certain circumstances, it may be possible to use the existing common-law offence of blackmail to prosecute such behaviour. However, this may depend on the facts and circumstances of the particular case. We therefore propose that it should also be an offence to threaten to share private intimate images without the consent of the person featured in those images.
11. Do you agree that the offence should be framed so that a person commits an offence where they share a private image of another person and they knew or ought to have known that its sharing/distribution would be likely to cause that person alarm or distress
12. Do you agree that it should be an offence to threaten to share private, intimate images of another person without their consent?
2.29 As noted above, at present, people sharing intimate and private images without consent, and with the intention of causing humiliation, alarm or distress, may be prosecuted using, for example, the offence of 'misuse of a public communications network' at section 127 of the Communications Act 2003 ("the 2003 Act"), the maximum penalty for which is 6 months imprisonment or a fine or both, on summary conviction, or the offence of 'threatening or abusive behaviour' at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 ("the 2010 Act"), the maximum penalty for which is 5 years imprisonment or a fine, or both, on conviction on indictment.
2.30 We consider that the sharing of intimate and private images is of a greater seriousness than the kind of conduct which the offence at section 127 of the 2003 Act is primarily concerned with, as it is not a feature of that offence that the material being communicated is private or that its disclosure would be likely to cause alarm or distress.
2.31 On the other hand, there is an argument that the offence of 'threatening or abusive behaviour' at section 38 of the 2010 Act which can be used to prosecute very serious offending, which might involve a continuing campaign of serious threats and abuse, potentially captures more serious offending behaviour. Therefore we consider that the maximum penalty for the offence of sharing intimate, private images of a person without their consent should be set somewhere in the range of 6 months to 5 years and we welcome your views on this.
13. What level of maximum penalty do you think should apply for the new offence? Do you have any other comments regarding the penalties for the new offence?
2.32 We would welcome views on whether there is a need to provide for statutory defences to an offence of sharing intimate, private images. We note that the equivalent offence in England and Wales at section 33 of the Criminal Justice and Courts Act 2015 provides for three statutory defences:
- That the person disclosing the image reasonably believed it was necessary for the purposes of preventing, detecting or investigating crime;
- That the person disclosing the image reasonably believed that it had previously been disclosed for reward, and that this disclosure for reward had not been done without the consent of the person who appears in the image;
- That the disclosure was made in the course of, or with a view to, the publication of journalistic material, and the person making the disclosure reasonably believed that in the particular circumstances, the publication of the journalistic material was or would be in the public interest.
2.33 The defence that an image had previously been disclosed for reward appears to be intended to ensure that images which are already, in a sense, in the public domain, are not covered by the offence. The defence that the image was disclosed in the course of, or with a view to the publication of, journalistic material appears to be intended to protect legitimate journalistic investigations. We anticipate that it is only in very limited circumstances that legitimate journalism in the public interest would involve the publication of intimate private images without the subject's consent.
14. Do you think that there should be statutory defences to the proposed offence of disclosing a private, intimate image?
15. If so, what defences do you think should be provided and why do you think they are needed?