Jennifer Lawrence and the leak of naked pictures: legal solutions

Actress Jennifer Lawrence is one of apparently 100 celebrities who have had intimate photographs of them leaked on to the internet.  She is not the first celebrity to appear naked on the internet.  The World Wide Web contains millions of images of celebrities in various states of undress.  These have been captured (invariably in flagrant breach of copyright) from films or television shows or by the intrusive paparazzi.  Some 'celebrity sex tapes’ also appear on the web.  These ‘go viral’ normally due to sloppiness on the part of the celebrity themselves or as a result of a partner or third party breaching their trust.  Unusually, in the case of Ms Lawrence it is understood that the photographs were obtained from her mobile phone by an anonymous hacker gaining access via a ‘cloud data’ storage solution.

The practical advice, albeit too late for Ms Lawrence and others, is if you want to take these types of photographs for private purposes, do not take or store the images on a device with an internet connection.  If you want to be even safer, then use a non-digital device (e.g. a polaroid camera) and keep the photographs in a safe place.  Hard copy photographs can of course still be scanned if misappropriated, but this is an extra hurdle that requires more than a couple of mouse clicks.  This may cause a perpetrator further pause for thought, particularly if they are experiencing a ‘moment of madness’.

In terms of what one can do after the horse has bolted to try and limit the damage, obtain compensation and/or justice, the following are a selection of the legal options available to someone in Ms Lawrence’s position in England or Wales:-

Misuse of private information

An individual has a ‘reasonable expectation of privacy’ in respect of private and intimate photographs stored on their own phone or any other device.  This flows from their Article 8 ECHR rights (right to a private and family life).  They are entitled to have their autonomy and dignity protected.  The disclosure of such images via hacking is clearly unauthorised.   There is no counterbalancing Article 10 (freedom of expression) right in such instances.  This is because there is no public interest in the material being published (the fact that certain member of the public might be interested in seeing Ms Lawrence in a state of dress would not meet the ‘public interest’ test).  Even if the images were already in the public domain, this would be unlikely to assist a defendant in these types of case.

A claim for damages and an injunction could be brought against the hacker and anyone else publishing or disseminating the images or threatening to do so. 

From a practical point of view, lawyers can write to the operators of any website publishing such material, demanding removal on the above grounds.

Breach of confidence

Similarly, the publication of the images is a breach of confidence.  No prior relationship needs to exist between someone in Ms Lawrence’s position and a defendant.  The information (i.e. the photographs) has the ‘necessary quality of confidence about it’.  If you are walking down the street and you come across an individual’s medical records you should know the information is confidential and you should not disseminate the records (regardless of the fact you have not agreed to keep them confidential).  The same applies to intimate pictures. 

Breach of copyright

Someone in Ms Lawrence’s position will often hold the copyright over the images.  Alternatively, it might be held by a partner/friend who took the photographs.  Unless they have authorised specific use or assigned the rights then the dissemination of the images will normally be a breach of copyright. 

Again a claim for damages and injunction could be brought against the hacker and anyone else publishing or disseminating the image or threatening to do so.

Negligence/breach of contract

If one places their trust in a cloud computer system and this is compromised through no fault of the user, then a claim may lie against the provider of the system in negligence or for breach of contract.  This will be subject to any exclusion/limitation clauses.

Criminal liability

The unauthorised access to a computer or electronic device in such a manner is likely to be an offence contrary to the Computer Misuse Act 1990.  Sophisticated hacking is not required for this offence to be made out.  Someone may access your machine whilst you are away from your desk.  They may know your password. 

Additional offences may apply depending on the circumstances of the case (e.g. blackmail, harassment, sending a communication with the intent to cause distress or anxiety contrary to the Malicious Communications Act 1988).

A criminal prosecution will not compensate a victim for the anxiety and distress suffered, but a conviction is intended to punish the perpetrator.