Revenge porn is one of the newest offences in our ever-growing list of sexual crimes. But, what is it, what is the law, and how do we defend against revenge porn allegations?
What is revenge porn?
Revenge porn is the colloquial name given to the unauthorised release of private sexually explicit images. It is usually done as an act of revenge but the law does not require such motivation.
The images could be photographs or videos but will usually be taken with consent. Often they will have been taken by the person shown in the image themselves. Thus revenge porn is about the distribution of images rather than the production of the images. Other offences exist covering situations where an image is taken without consent.
The law on revenge porn
The relevant law is contained in section 33 of the Criminal Justice and Courts Act 2015. Section 33 makes it an offence to disclose or threaten to disclose a private sexual photograph or film in which another person appears. The disclosure must be intended to cause distress to the person shown in the image. The disclosure must be made without that person’s consent.
It’s probably easy for most people to identify sexual images, but broadly speaking an image will be sexual if it shows exposed genitals. Or, if a reasonable person would consider it to be sexual. An image can also be sexual if a reasonable person would consider its content as a whole to be sexual. However, editing cannot turn a non-sexual image into a sexual one for the purposes of revenge porn legislation. But, be warned that this is being written in February 2023 while the Online Safety Bill is making its way through Parliament. That Bill is likely to introduce another new offence of sending photographs or film of genitals as section 66A of the CJCA 2015. That new offence will include images edited to be sexual.
It is an offence merely to threaten to disclose a revenge porn image. The prosecution do not to prove that the image actually exists! If the image does exist, the prosecution need not prove that it is a private sexual image. This was inserted into the revenge porn provisions in 2021 to make convictions easier.
Defending a revenge porn allegation
In all criminal cases there are two broad avenues to pursue when considering your defence. First, can we undermine the prosecution case. There are set elements that the prosecutor must prove to secure a conviction, if they can be removed then you cannot be convicted. This approach can be very successful and is almost certainly why the government changed the law so that the prosecution no longer had to prove the image actually existed in 2021! The second approach is to look for a defence available in law. We’ll deal with each in turn.
Undermining prosecution evidence
First, the prosecutor must prove that you disclosed or threatened to disclose an image. If you neither disclosed the image nor threatened to do so you will have a defence. If the image has been sent to you and a number of other people then the prosecutor will have to show why they say you disclosed it rather than any of the others.
You will also want to consider whether the image is actually sexual. In some cases, it will be indisputable, but in other cases it will be up for debate. Don’t forget, that if the image is only sexual because it has been edited that way then it currently cannot result in a conviction.
Your intention in disclosing the images is particularly important. You must intend to cause distress. It is irrelevant whether distress is actually caused. An intention to cause distress cannot be inferred merely because distress is the foreseeable and natural outcome. Thus if your intention was something other than causing distress you will have a defence. This might apply if the image was taken with an agreement that it would be published and you believed you had a contractual right to publish.
Defences to revenge porn allegations
There are several statutory defences that must be considered in any trial. First, to whom was the image disclosed? If the image was only disclosed to the person shown in the image then no offence occurs.
You will also have a defence if the disclosure is made for the purpose of preventing, detecting, or investigating crime. This might apply to those who disclose – or threaten to disclose – images to the police. It may also apply to paedophile hunter style groups who disclose images to prevent crime by warning other or to identify a suspect. You will have to prove this so that the jury believes your account is more likely than not to be true.
There is a defence where the disclosure forms part of a journalistic publication. It is difficult to imagine a respectable newspaper or magazine publishing such photographs; however, it may be that it is necessary to disclose the images during the research of a story. It may also be necessary for a person to disclose images to a a journalist. Thus, this defence does not apply solely to journalists.
The final statutory defence is that you reasonably believe the image is a published commercial image and you have no reason to believe the image was published without consent. This may apply if you have obtained the image from a website that displays commercial images, for example. Your belief must be reasonable, rather than merely honest. This really means that you will have to provide some objective reason for believing the image is a commercially published one.
Both the journalistic and commercially published defences require you to prove nothing. You will need to raise the defence by producing some evidence, but when you do the burden falls on the prosecution to disprove your defence!
Conclusion
There are a number of defences to allegations that you distributed revenge porn. Speaking to a solicitor who understands the law will give you the best chance of avoiding a conviction.
Call us today on 020 8242 4496 or send a message to one of our expert revenge porn defence solicitors.