The fast-paced development of digital technology has opened a pandora’s box of new behaviours under online abuse, which negatively impacts individuals of all ages, particularly young people. The government’s task of successfully classifying online abuse as criminal offences, is becoming increasingly difficult. A topical issue is the problematic area of the criminal law surrounding ‘revenge porn’. This is defined as “the sharing of explicit or sexual, images or videos, without the consent of the person in the image”. Although the current law has provided solutions in some instances, there is still room for improvement in its drafting. Research has shown that between 26% and 38% of 14 to 17-year-olds admitted sending sexual images to a partner. Additionally, between 12% and 49% have said they have received a sexual image, indicating its increased prevalence within society. Therefore, it is important to review and further analyse whether the existing criminal legislation has been efficiently drafted to successfully prosecute a range of perpetrators. There is a possibility that the current drafting and threshold for intent under s.33 of the Criminal Justice and Courts Act 2015 limits the scope of the offence’s perpetrators; hindering an increase in the number of successfully prosecuted cases. Set out below is my critical analysis of the existing law on revenge porn and my proposals for reform.
It is clear from the drafting of the legislation that this offence is one of specific intent with a high threshold. This is understandably so, due to the serious implications that accompany being charged with a criminal offence.
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Prima facie, the legislation is narrow in its application. The obvious assumption would be that the distribution of private sexual images or videos without consent would undoubtedly cause the victim ‘distress’. Unless the prosecution proves beyond reasonable doubt from the evidence presented in the courts, that the accused intended to cause the victim distress by their disclosure, and not “merely because that was a natural and probable consequence”, a person would not be guilty of a criminal offence.
I believe that the addition of s.33(8) further complicates the interpretation of the offence, as it adds to its limited scope. The sentencing guidelines explain that the jury need not find intent, but instead, may infer intent from evidence presented by the prosecution and the defence. A government circular added to this through an example that third parties who distribute private images, because they find it amusing, may not be caught by the offence since Parliament is conscious of preventing interference with “freedom of press”. The latter is reasonable, because it is something that should not be interfered with. Gillespie speculates that s.33(8) was added to include cases where oblique intention may be inferred by the jury; however, I do not believe that was Parliament’s intention. There was a purposeful focus on the drafting of s.33 - to capture those who distribute sexual images of another maliciously.
The current law has attempted to address the problem and capture those whose motives for distribution are intentionally malicious, which is often the case after a bitter break-up. Parliament was careful not to open the floodgates to allow excessive criminalisation by penalising young people. This could have serious implications on the way the English justice system works.
Conversely, s.33(8) does not completely regard the extent of the impact on victims and further limits the scope of those who can be caught by the section, since it is looked at from the perpetrator’s perspective. I believe that this is an example of the notion that adults’ fear and underestimation of internet misuse by youths can lead to an ignorance of their “digital sophistication”, as set out by Simpson. The reality is that most young people will continue to share another’s intimate photos or videos for various reasons.
More importantly, the law’s specific requirement of an intention to cause distress creates a lacuna in the law for revenge porn perpetrators. In some circumstances a third party may distribute or redistribute the images to other third parties for humiliation, entertainment or to gossip on social media. The crux of the matter is that these reprehensible acts fall outside of the remit of the current provision. What the law fails to recognise is that disclosure of this kind is equally as harmful as disclosure intentionally done out of malice, and deserves to be criminalised. Although the CPS noted that the government is quite rightly mindful of not criminalising the unwise acts of young people in contravention of the public’s interest, what cannot be overlooked is the fact that cases of revenge porn are evolving and becoming progressively common amongst the youth; therefore, becoming an even more problematic area for existing legislation to tackle. It is debatable whether criminal sanctions are proportionate where some of the youth may not appreciate the potential impact of distributing private images in this way; yet Croft and Kirchengast boldly highlighted that “there can be no innocent intent” in reference to matters surrounding revenge porn. This statement successfully underpins the fact that the English criminal law is failing to target a wider pool of perpetrators. Regardless of whether their motives are ‘foolish’, criminal redress might be just where some consequences of these acts have resulted in the loss of life (Damilya Jossipalenya) How can we teach the public that this behaviour is unwanted and unacceptable, unless others are made an example of? The law must act as an effective deterrent to sexual image distribution of this kind.
Another issue with the narrow drafting of the offence may lie with the sole use of distress to cover the resulting harm done to a victim. Perhaps this makes the prosecution’s evidential burden more difficult to discharge in practice due to the lack of flexibility? Other instruments that use distress do not mention it alone; it is always in addition to another emotion, for example, anxiety.
The limitation of the term distress was also considered in Parliament, where some suggested that more emotions be added to the section to assist the prosecution in being able to prove intent. These amendments were not applied, because the rest of the politicians felt that distress could be easily interpreted and is an all-encompassing term. I believe that the suggested amendments were well-founded; however, the line of arguments in their support did not go far enough. The issue is not just with the sole use of distress. It is the fact that the legislation is drafted as a specific intent offence which fails to accurately reflect and criminalise other notable motives and circumstances outside of malicious intent, but which nonetheless cause harm.
The majority of those involved are young people and a lot of cases involve underage children. Although the government has suggested initiatives, it is apparent that s.33 is not doing enough to protect the youth, with many victims being unable to get justice under the legislation because the threshold is so high, or the prosecution has trouble fulfilling the evidential burden. The BBC’s research showed that 61% of 1,160 reported incidents had no action taken in the first nine months after s.33 came into force. This was largely attributable to a lack of evidence. Others have resorted to the civil law if they have the financial means, and this shows that the criminal law is lacking it its efficiency.
Criminal law has helped bring perpetrators like Amar to justice, even where there was limited disclosure. Research has shown, however, that the provision makes it harder to get a successful conviction because of the intent threshold. This is proving to be a significant barrier for the prosecution, police and the victims which is displayed in the low number of prosecutions. Additionally, this evidential barrier was further highlighted in the North Yorkshire Police, Fire & Crime Commissioner’s report, where one of the reasons given for the lack of successful charges being brought was due to the prosecution and police being unable to prove s.33’s intent requirement. Thus, many cases were dropped.
This issue was also identified by the Law Commission which recognised that a lack of evidence made it difficult to attain successful prosecutions. Although people such as Jason Asagba have been successfully prosecuted under s.33, there are clear limitations with its drafting. Notwithstanding that the number of reported revenge porn cases nearly doubled from 1,861 offences in 2015-16 to 3,307 in 2017-2018, the proportion of cases that have resulted in charges has decreased to 7% between 2017-18. This is particularly relevant as the evidential burden rests on the prosecution. Where the prosecution is not required to show evidence of distress (which can be difficult to prove), and the jury is directed as being able to exercise it discretion to infer intent, how then, can they be reasonably expected to successfully prove such intent in practice? Without the help of a caption or some form of communication that outrightly demonstrates the required intent, the victim can only speculate or pose hypothetical situations which leaves the police with very little evidence to give in court. Again, this validates efficacy and incoherence issues, since the law is there to give redress and justice to the public; yet it appears that the current threshold is too high to make this widely possible. This is shown by the disparity between the increased number of complaints being reported, in proportion to the number of successful prosecutions.
Gillespie states that “By creating s.33(8), Parliament has arguably muddied the waters by creating a provision of uncertain wording and application.” I agree because there is some inconsistency in how the law is to be interpreted. Green was charged for sending his ex an intimate video to warn her of its distribution. Although MPs made it clear that it is not the government’s intention to punish excessively, Green’s “foolish” behaviour was still captured by criminal law. The facts seem to suggest that his intention did not warrant a criminal conviction; yet, third parties who distribute the images to other third parties and social media networks for mere entertainment or bragging, are not condemned by the law.
Samantha Pegg rightly praises the Act for having “provided a more targeted response than those offences previously relied upon by prosecutors”. This has meant that certain offenders who have disclosed images with vengeful motives have been punished accordingly. She also highlights that it has the wrong focus in its drafting. Malicious motive should not have been the sole driving force of the drafting of this legislation. Harm should also have been taken into account as currently, the criminal law does not adequately protect enough victims. This is noted by Gillespie who states that “it does not quite deliver on this.” This is a complex area of law which s.33 has attempted to address and resolve by targeting those with a particular motive which, in my view, is simply unacceptable. Baroness Thornton acknowledged that “the Government have not yet solved the problem”. This demonstrates that those responsible for drafting the law should never be complacent, especially in matters of digital technology abuse.
There have been various suggestions as to what amendments can be made to s.33 in order to improve the conviction rate and dramatically increase the number of complaints that are brought to the police. One suggestion that has been made by activists is to remove the wording “intent to cause distress” as this is always going to be the outcome of the distribution of sexual images without one’s consent. I do not believe that this is the solution to the current issue of redistribution of revenge porn. To remove the latter wording of s.33(1)(b) would completely undermine the purpose behind the creation of the provision and would be too low a threshold to satisfy.
It would be unreasonable to deny the government appreciation of its efforts to tackle revenge porn issues. Unfortunately, the drafting was reactive and did not provide room for possible future behaviours in this area to be criminalised, particularly third-party redistribution. The law in this area has been reactive and too narrowly drafted to deal with potential future offences. Redistribution is often unreported, which could be attributed to the lack of recognition and protection from the criminal law.
A possible idea to reform the law and tackle the abovementioned legal lacuna is to consider an amendment that changes the s.33 offence from one of specific intent, and add subjective recklessness as set out in Cunningham. The additional wording could be something along the lines of “the person knew or ought to have reasonably known that such disclosure is likely to cause distress”.
In practice, the offence would not assess recklessness purely from a subjective standpoint, as the judge would guide the jury to:
o asses the offender’s awareness of the risk of distress; and
o objectively assess the reasonableness of the accused taking that risk.
Although previous suggestions regarding recklessness and s.33 were rejected, one benefit with this amendment is that not only those who have malicious intent will be held accountable by the criminal law, but also third parties who redistribute and actively disclose for other purposes such as humiliation, embarrassment, bragging or for sheer gossip etc., thereby contributing to wider disclosure. Prior to the drafting of s.33, Baroness Kennedy stated “it is important to draft widely without specifying the nature of the motivation. That is because it is always difficult to pin down motivation.” This important principle seems to have been lost in the drafting of s.33, because its specific underlying focus is on those with “intent to cause distress”, not those who lack this mens rea, but were nonetheless aware of the impact of their actions. The above amendment would help rectify this legal loophole by shifting the current focus of specific intent to a more effective provision which would then allow a wider pool of perpetrators to be held accountable. It could also provide an avenue to increase the maximum sentence; something which would also assist as a deterrent.
On the other hand, extending liability in these instances could be criticised as going too far. The level of culpability must be considered with pragmatism and simultaneously with the legislative powers, particularly because the whole concept of the internet and social media is information dissemination. As Croft and Kirchengast noted “only substantial wrongdoing should be subject to criminal law and that requires an assessment of the harm to the person and the level of culpability of the perpetrator.”
From a practical standpoint for my proposed reform, the CPS would be able to give further guidelines on how the legislation is to be interpreted and factors which should be taken into consideration, particularly that each case should be decided on its own facts and merits. The amendment would not affect the current defences or interfere with concepts such as the ‘freedom of press’. Alternatively, some lawyers may argue that such an amendment would undermine the intention of Parliament when drafting s.33, as it was not created to criminalise young people for their typical behaviours. I can understand why this was considered - Parliament wants to avoid overcriminalisation and a wealth of minor claims resulting in the criminal convictions of young people. Nevertheless, we should have confidence that lawyers would not bring unfounded cases in future. Where this may occur, we can trust that the courts will not give disproportionate criminal sanctions, depending on the facts of the case and also considering the evidence given by the perpetrator in their defence.
Another criticism that could be raised against the addition of subjective recklessness to the section is that it is not necessary. The primary target pool of perpetrators is easily captured by s.33, and those who disclose or redistribute with other intentions may be pursued under privacy law or dealt with under the remit of other offences. Having such a provision might prove a harsh punishment for careless behaviour, especially knowing that it will most likely affect young people.
The proposed reform must be considered in light of all the above-mentioned arguments. Criminal sanctions are harsh and, in some cases, arguably disproportionate to the perpetrator’s motives; however, the law cannot ignore the potential gravity that one’s actions may have on another or the ease with which images can be shared through digital technology. As such, the law must be reviewed. It is clear that while people are being prosecuted under s.33, it is lacking in its scope by targeting a small pool of perpetrators and there are issues with the prosecution being able to discharge their evidential burden. With technology developing at an ever-fast pace, the law is often outdated, and plays catch up with current criminal law issues surrounding online abuse. This means that the law is often reactive. Thus, the overall challenge for the government is to ensure that the law is proactive.
One thing that must be acknowledged is that the issues surrounding revenge porn are quite recent and are still developing, therefore the state of the current law may not yet be sufficiently developed to assist both lawyers and victims alike. More importantly, a lot more research is required to better understand revenge porn behaviour. Until then, the law cannot yet provide ideal redress and must be reviewed constantly.
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