Lexis Nexis interview: Law surrounding non-consensual intimate images to be reviewed

Brett Wilson LLP partner Iain Wilson and other lawyers are interviewed about the Law Commission's upcoming review.

The Ministry of Justice has asked the Law Commission to review laws around the making and sharing of non-consensual intimate images in an effort to ensure that ‘protections keep pace with emerging technology’. The review intends to look into ‘whether current legislation is fit to tackle new and evolving types of abusive and offensive communications, including image-based abuse, amid concerns it has become easier to create and distribute sexual images of people online without their permission’. Stuart Sutton, defence lawyer at Sutton Defence Lawyers, emphasises that reforms should not come at expense of the concept of ‘innocent until proven guilty’, which is the cornerstone of law in England and Wales. Dr Samantha Pegg, senior lecturer at Nottingham Trent University, notes the ‘piecemeal development of the law’ regarding image-related sexual offences ‘with little consideration of either overlaps or loopholes’. Greg Callus, barrister at 5RB Barristers, contends that there are changes that can be put in place quickly rather than waiting for the end of the two-year review process. Honza Červenka, trainee solicitor at McAllister Olivarius, highlights the current ‘lack of a civil remedy that would enable victims to seek civil injunctions and damages for the distress they suffered’.  Iain Wilson, partner at Brett Wilson, would like to see legislation amended to allow for victim anonymity and prevent defendants avoiding liability for their actions.

The review will consider more recent trends, such as ‘cyber-flashing’ and ‘deepfake’ pornography. It also intends to build on earlier legislation for the sharing of non-consensual intimate images, including the making of ‘upskirting’ and ‘revenge porn’ specific illegal offences. The review will also consider automatic granting of anonymity to victims of revenge porn in a similar fashion to sexual assault victims.

Piecemeal development

Sutton contends that the ‘government are right to review these areas and potential offences’. However, he does note that ‘as with all allegations of sexual crimes, the opportunity to advance a robust defence must not be eroded yet further. The fundamental cornerstone of the law in England and Wales is “innocent until proven guilty". Let us keep it that way.’

Although Pegg welcomed making ‘upskirting’ and the ‘disclosure of private sexual images’ an offence, she nevertheless highlights the ‘piecemeal development of the law’ regarding image-related sexual offences ‘with little consideration of either overlaps or loopholes’. Pegg believes that ‘victims will only be fully protected when the law is made fit for a modern environment where technology readily lends itself to new forms of offending’.

Interim measures

Callus argues that ‘the prevailing view of experts in this area seems to be that a review of some of the more complex or novel aspects of this area of law by the Law Commission might be welcome, but that there are already clear and simple legislative changes that could be made very quickly, even if just as interim measures, given the review will take two years to report’.

One example of this that Callus gives is to add the offence under section 33 of the Criminal Justice and Courts Act 2015 (CJCA 2015) to section 2(1) of the Sexual Offences (Amendment) Act 1992, so that the ‘automatic anonymity in section 1(1) of that Act would apply to those who were victims of that offence in the same way it applies to victims of physical sexual assaults’. He believes that this ‘would be a very simple amendment to make, and could have a transformative impact on the preparedness of victims to report this crime’.

Červenka welcomes the review.  The CJCA 2015 ‘made the sharing of revenge pornography a criminal offence, subject to a high level of proof, and the often insurmountable requirement to prove intent to cause distress’.

Červenka also supports the introduction of automatic anonymity for victims, as ‘another reason for them to feel empowered to take action’ given that ‘filing a criminal complaint or issuing a civil claim with their real name, can encourage online trolls to find the videos or images in question, share them again and re-traumatise the victim’.

However, he notes that ‘if the review keeps pace with the various ways of how non-consensual pornography is shared online, it can make a lasting difference’

Amending legislation

Wilson hopes that the commission recommends that the ‘revenge porn’ offence be classified as a sexual offence insofar as it would gift complainants lifelong anonymity under the Sexual Offences (Amendment) Act 1992. He believes that this ‘appears to have been overlooked when the 2015 legislation was introduced’, and that doing this ‘would hopefully encourage more victims of revenge porn to make criminal complaints, making the legislation more effective at addressing the issue’.

Wilson also underlines that current law ‘restricts liability to circumstances where there is an “intention to cause distress”’, and that ‘this narrow definition means an individual sharing sexual images/videos can avoid liability when their motivations are otherwise questionable’. He contends that the legislation be amended ‘so that a defendant is liable where “they know or ought to know that the disclosure is likely to cause the subject distress”’.

The full version of this article was first published on Lexis® PSL on 26 June 2019 and is reproduced with permission and thanks.