Disclosure of private and sexual photographs and films

1. In an effort to combat a particularly pernicious aspect of the abuse of social media, the Government has created a new offence of disclosing private sexual photographs and films of an individual with intent to cause that individual distress.

2. S.33(1) of the Criminal Justice and Courts Act 2015 makes it an offence to make such a disclosure (i) without the victim’s consent and (ii) with the intention of causing that person distress.

3. The offence came into force on 13 April 2015.

4. The offence is triable either way. On summary conviction the maximum imprisonment will, subject to transitional provisions, be 12 months with unlimited fines. (See subsections (9), (11) and (12).) Conviction on indictment carries a maximum of 2 years imprisonment.

5. By subsection (2) it is not an offence under the Act for disclosure to be made solely to the victim however distressing disclosure might prove to be, for example, because he or she did not consent to the image being taken or had no idea that it had been.

6. Thus, if a man secretly filmed a woman naked in bed and later sent that image solely to her via his mobile phone intending to cause her distress he would not commit an offence under the Act. Only if he sent the image to another, whether also to the victim or not with the necessary intent would he do so.

7. Although distress may naturally flow from any relevant disclosure, the Act makes it clear that a defendant is not to be taken to have the required intention merely because it may do so. (subsection (8))

8. By virtue of subsections (2) and (3) a disclosure takes place where a defendant by any means gives or shows the photograph or film to another person or makes it available to another person irrespective of whether the material in question had been previously disclosed to that person and whether or not disclosure was for reward.

9. Disclosure would therefore include posting on a website or emailing to someone other than the victim. It would also include disclosure of the physical document itself or displaying it in a place where other people would see it.

10. What does “private” and “sexual” mean? The question is easier asked than it is answered. It is necessary to consider s.35.

11. If the photograph or film shows something that is of a kind ordinarily seen in public, for example, kissing, it would fall outside the ambit of the offence even though the kissing was sexual in nature (subsection (2))

12. What if the image showed all or part of an individual’s exposed genitals or pubic hair? The effect of subsection (3) is to make clear that such an image would be considered sexual for the purpose of s.33.

13. What if a photograph or film did not show such an image but was by its very nature of a sexual kind? By virtue of subsection (3)(b) the image shown would be considered sexual if a reasonable person would regard it as such.

14. Thus it would seem that “sexual”, rather akin to “beauty” will be in the eyes of the reasonable beholder if its nature is of a sexual kind.

15. What if the photograph or film shown is not by its nature sexual? Take for example a photograph of someone simply wearing underwear. Enter again the reasonable person. If such a person would regard the content of the image when taken as a whole as sexual- then sexual it is. In such cases it is clear that context will be everything.

16. Thus, a reasonable person might consider an image of a man wearing underwear to be sexual if something else was or was not shown or by virtue of the manner in which the wearer of the garment was posing at the time.

17. The Act is clearer in defining what is not considered private and sexual. It identifies the circumstances in which a photograph or film which contains content which is private and sexual is not to be considered private and sexual for the purposes of the Act.

18. Enter s35 (4) and (5) and the impact of manipulation, computer generated imaging and the merging or overlaying of images.

19. If a photograph or film has been altered in any way eg by manipulating a part of the image using a computer programme or it is combined with another such image or another kind of image by splicing them together or by superimposing one upon the other, then such an image is not considered private and sexual for the purposes of the Act if:-

(a)  no part of the photograph or film in question orginated from an image that was itself private and sexual or

(b)  the photograph or image is only private and sexual because it has been altered or combined with other material which has rendered the image as a whole one that now appears private and sexual. Thus, for example, where a non-sexual photograph or film has been altered in such a way as to now render it private and sexual or by placing it next to another image with like effect it would not be caught by s.33, or

(c) the victim only appeared as part of or with whatever made the photograph or film private and sexual because the photograph or film in question has been created eg where a non-sexual photograph of the victim has been merged with a sexual photograph that did not originally feature that person.

20. Thus, a person may go to great lengths to cause distress to another by giving a false impression to that person or indeed to third parties that the victim knowingly engaged in portraying a private and sexual image when they did not, but will not be guilty of an offence under the Act.

21. S.33(3)(4) and (5) set out the defences which apply to the offence.

22. It is a defence under subsection (3) for a defendant to prove to the civil standard that he reasonably believed that the disclosure was necessary to prevent, detect or investigate crime.

23. The defence under subsection (4) applies to those directly engaged in journalism and to their sources. In either case the defendant must show that he or she had a reasonable belief that there was in all the circumstances a public interest in the publication in question. Publication is defined as disclosure to the public at large or to a section of the public. Once this evidential burden is discharged it is for the prosecution to prove the offence to the criminal standard.

24. Under subsection (5) it is open to a defendant to show that he or she reasonably believed that the photograph or film in question had previously been disclosed with the consent of the victim for reward eg a reasonable belief that the image had been previously published for commercial gain because of the defendant’s reasonable even though mistaken belief that he or she had seen it on a magazine. Again once this evidential burden has been discharged it is for the prosecution to prove the offence to the criminal standard.

25. This Article does not address the liability under the Act of providers of information society services in respect of a s.33 offence. These complex provisions applying as they do to service providers both within the UK and the European Economic Area are contained in Schedule 8 of the Act.

Peter Doyle QC
25 Bedford Row.