Agate JenniferAn article considering “revenge porn” prosecutions since s 33 of the Criminal Justice and Courts Act 2015 came into force in April 2015, together with the key issues arising from its enforcement, written by Jocelyn Ledward (QEB Hollis Whiteman) and Jennifer Agate, senior associate in our editorial team.

This article appeared in Entertainment Law Review, Ent. L.R. 2017, 28(2), 40-42, reproduced here with the kind permission of the editor.

Introduction

In September 2016 the CPS released its annual Report on Violence Against Women and Girls, in which it stated that in the period 2015 to 2016 there had been 206 prosecutions commenced under the offence of disclosing private sexual images without consent, the so called “revenge porn” offence introduced by s 33 of the Criminal Justice and Courts Act 2015.

A seemingly positive result, until this is compared against other figures indicating that only 39% of reported offences are resulting in action being taken. More than a year on, how effective has the Act been and what still needs to be done?

Background: the Act

Section 33 came into force on 13 April 2015, creating a new criminal offence of disclosing private sexual photographs and films with intent to cause distress. Crucial to the offence are: (a) the lack of consent of the individual appearing in the photograph and film; and (b) the intent to cause that individual distress. The offence carries a maximum two year sentence on conviction.


Prior to the Act, the victims of so called “revenge pornography” had been forced to rely on various existing legislation never designed for the purpose. Typically s 1 of the Malicious Communications Act 1988, s 127 of the Communications Act 2003, s 2 and s 4 of the Harassment Act 1997 and the civil tort of misuse of private information (privacy law).

Prosecutions to date

To have any impact new legislation needs to be well publicised and deployed, and it seems the CPS has done just that. As above, figures released in September indicate that just over 200 prosecutions have already taken place, most resulting in convictions.

The first prosecution took place almost immediately, with Jason Asagba pleading guilty to the offence on 16 May 2015. He was sentenced on 1 September 2016, receiving a six month sentence, suspended for 18 months, 100 hours unpaid work and an order to pay £345 costs. Mr Asagba had texted explicit pictures of a 20 year old woman to her family and shared them on her Facebook timeline, having hacked into her account. The pictures had been taken without her consent while she was asleep. A restraining order was also imposed banning Mr Asagba from contacting his victim or her family for four years. The facts of the Asagba case are sadly typical of the a trend appearing across the cases, with many defendants having hacked into their victims social media accounts to post them on their own pages. In others, parody accounts had been set up. In the aftermath of his sentence, Director of Public Prosecutions, Alison Saunders, said that although it was too early to analyse trends, anecdotally more cases of this kind were being referred by the police to the CPS since the legislation had come into force.

The first woman to be convicted was Paige Mitchell, who in September 2015 was given a six week suspended sentence and ordered to pay £345 costs after uploading four explicit images of her girlfriend, complete with insulting captions. The posting was said to be in revenge for her girlfriend looking at other women.

There are no sentencing guidelines at present, and no reported authorities, but looking at cases that have been publicised in the media, overall the level of sentence appears to be robust: most are suspended sentences of imprisonment, rather than community orders or lesser penalties, and there are several examples of immediate custodial sentences. In the absence of more explicit guidance, the courts appear to be following the Magistrates’ sentencing guideline for offences of non-violent harassment (which carries the same maximum two-year sentence, and the most serious category of which involves “making personal photographs/sending offensive material” for which the suggested sentence is 18 weeks’ imprisonment). This results in firm sentences overall: the s 33 offence carries the important distinction of not having to involve repetitious conduct and, unlike harassment cases, most of the reported cases seem to involve isolated instances . It would appear to be here, in the cases of the single but extremely damaging malicious disclosure, that the legislation is proving most effective.

While revenge porn is typically portrayed as a crime committed by men against women, the Revenge Porn Helpline, set up in February 2015 to support victims, reports that 25% of calls are from men, often cases of so called “sextortion” where criminal gangs pose as women to obtain footage and then blackmail the men. When prosecuted, such crimes are unlikely to fall under s 33 and are more likely to be prosecuted under blackmail and extortion legislation. However, Police figures released in November 2016 revealed that reports had almost doubled in 2016, with more than 900 cases reported, perhaps suggesting that the general move towards taking this type of online crime seriously is encouraging the victims to seek help .

The prosecution figures released by the CPS in September referred only to the number of prosecutions, not the number of cases referred to prosecutors. Freedom of Information (FOI) requests made by the BBC revealed that between April to December 2015 there had been 1,160 reported incidents, some alleged victims as young as 11, with 61% of reported offences resulting in no action being taken. The main reasons cited were the lack of evidence or the victim withdrawing support for the action. 11% resulted in charges, 7% in a caution and 5% in a community resolution. At first blush, this may suggest there is room for improvement: domestic violence cases are now routinely approached as “victimless” prosecutions, and with most of these offences committed online, many ought to be amenable to a similar approach. However, lack of consent is an essential element of the offence which needs to be proved, and cases are likely to be few where that can be established without direct evidence from the victim.

Intent

As set out above, a crucial element of the offence is the intent to cause distress to the subject of the photographs or film. So a user simply retweeting or forwarding an image would only fall under s 33 if the intent was to cause distress. Section 33(8) emphasises the positive requirement to prove intent, and not for it simply to be inferred: “A person charged with an offence under this section is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure”.

In many cases intent is fairly evident, with many offenders admitting that they posted the images in retaliation for a perceived wrongdoing by the victim. To date, surprisingly few cases are emerging where the alleged offender has relied on the absence of intent in their defence. In July 2016 Christopher Green of Banbury, Oxfordshire, pleaded guilty to the offence, after forwarding a video showing his former partner performing a sexual act. He had received the video from another of her former boyfriends, Aidan Farrelly of Hatfeld, Hertfordshire, who later admitted to having sent the video out of revenge. By contrast, Green had forwarded it to his former partner and her best friend to warn her that it was being circulated. He also reported the video to the police.

Green received a conditional discharge and an order to pay £250 costs; Farrelly, a two months sentence (suspended for 12 months), 100 hours unpaid work and also £250 in costs.

Whilst Green’s decision to send not only a warning but the video itself to the best friend may have been foolish or misconceived at best (that being the only offence committed: it was not an offence to disclose back to the subject (s 33(2)), his account of his intention was seemingly accepted by the prosecution. That is reflected in the very low sentence imposed. But it is unclear why Green should have pleaded guilty at all, if his intention was to warn, rather than to cause distress. The Act is clear, and s 33(8) emphasises the distinction between the offender’s intention and the consequences of his actions. Although these sorts of circumstance are likely to be few and far between, the requirement to prove intention is an important safeguard and it is unlikely that Parliament intended to criminalise those who act as Mr Green did.

Anonymity
The “intent” behind the crime has also been used in the argument over whether the victims of the offence should receive anonymity, a protection automatically accorded to the victims of “sexual crimes” . In a letter to North Yorkshire crime commissioner Julia Mulligan, then Policing Minister Mike

Penning stated : “[The new offence] is not a sexual offence, that is to say that the mental element of the offence is not a sexual one, it is a malicious one (the intent to cause distress). “The behaviour itself is also not ‘sexual’, although the material disclosed may be sexual in nature, the offences committed requires, for example, no element of sexual contact, sexual intent or sexual gratification.

“Instead it is the disclosure of photographs and/or films without the consent of the person appearing in them. In this way, the offence is more akin to the existing malicious communications offence or to blackmail than it is to a sexual offence.”

The government's position has remained consistent, Karen Bradley, then minister for Preventing Abuse, Exploitation and Crime, writing in June 2016:
“Whilst victims can in some circumstances feel violated by the malicious disclosure of sexual images the offence is not a sexual one.
“It does not require any element of sexual contact or sexual gratification and it does not attract sex offender registration … We do not consider automatic anonymity is necessary or desirable in the case of revenge pornography.”
While orders have been made in individual cases, campaigners argue that the prospect of being named in the courts is dissuading many victims from coming forward. This is certainly an area in which we are likely to see continued campaigning.

Third party liability

According to the information revealed to the BBC under their FOI requests, the site most frequently used by perpetrators to distribute images is Facebook, appearing in 68% of cases. Instagram appeared in 12% of cases and Snapchat 5%. Twitter appeared in 14 cases, with mobile phones only being cited in eight cases and WhatsApp in 16. At least two cases involved print copies being distributed, one defendant distributing intimate pictures at a supermarket and another in public places around a North Somerset town.

Although the Act imposed no liability on third parties hosting the images, websites were swift to see the reputational benefit in being seen to be proactive in helping the victims, many setting up specific forms for users to report revenge porn. In just one example, Microsoft responded to the new law by establishing a specific content removal request form for “non-consensual pornography” from its Bing search engine. The company has since reported that between January to June 2016 it received 406 removal requests, of which it accepted 251 (62%) .
Websites designed specifically to host revenge porn would be in a different category, although unlikely to set up home in the UK.

Comment

The bringing into force of this offence appears to have filled an important lacuna in the existing legislation. It has been well publicised, and deployed relatively robustly by the investigative, prosecuting and judicial authorities, with no fundamental problems yet identified with its operation. However, the low maximum penalty means that authoritative guidance is likely to be slow in coming. There is still room for improvement in converting reporting rates to successful prosecutions. This may be yet another reflection of the widening gap between available investigative resources and the growth of social media offending, with the consequence technological resources are required gather the necessary evidence. Perhaps the more important legacy of this legislation has been to play an important part in raising public awareness and disapproval of this breed of abusive conduct.

To find out more please contact the author, Jennifer on T:  +44 (0)20 7263 0011 or E: jennifer.agate@footanstey.com

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