Law Reforms on Taking, Making and Sharing Intimate Images without Consent
With how almost anyone has a decent camera in their pocket and practically unlimited ability to take, store, and share images to anyone and everyone all over the world, it was inevitable that intimate images would end up finding their way onto social media. What may have started with consensual image sharing to build trust and excitement can end up with an angry ex-partner posting these images online when the relationship turns sour.
There is a particular fetish or threat of “Revenge Porn”, in which someone’s private intimate photos or videos are posted online to the victim’s humiliation. Just the threat of this can be considered as a form of abuse in which someone can assert control over their partner or ex-partner.
If personal contact details are also shared – or even if not, since tracing people through embedded metadata in media is not particularly difficult for those in the know – the victims may face online and offline harassment, shame and censure from their friends and family, or even physical danger and further sexual abuse. Strangers may extort victims for favours in monetary or sexual terms on the threat of further exposure.
Non-consensual taking and sharing of intimate images and videos can leave victims with serious and long-lasting fears and traumas. Above the humiliation and terror they experience, they may suffer extended psychological harm such as such as anxiety, depression and post-traumatic stress disorder (PTSD). This can cause direct physical and financial harm. Withdrawing from online spaces and distrusting those around them limits their ability to find further human connections and employment. Some have been driven to self-harm and suicide.
This is obviously a crime.
But laws could still be strengthened and more clearly defined. The Law Commission of England and Wales have certain new proposals in this matter.
The actual crime involved
It is certainly not a crime to send intimate images or videos of yourself privately to another person if you’re both consenting adults.
However, it is definitely a crime to show intimate images or videos or send them to another person, to upload them to a website, or threaten to do so, without having your consent. This specifically includes ‘revenge porn’ and everything involved in such exploitation.
If you have personally upload intimate photos of yourself to a public website, you have already given your consent and then people sharing the photo would not be committing a crime no matter how far it spreads. Photos and videos already in the public domain or with prior consent of the person in them – actual pornography for example – anyone sharing any of that is not committing a crime.
Unless it is anything involving a minor, and there is zero tolerance for any of that. It is a crime to take, make, share or keep an indecent photo or video of a child under 18.
Defining “intimate” photos and videos
Photos and videos are considered of intimate sexual nature and covered by law protections when:
- It is private, a material normally not to be viewed by the public
- A person is doing or present during a private sexual act
- Genitalia, buttocks or breasts are exposed or covered only by underwear.
Bathing suits, for example, may not be covered by this law as being sufficiently covered and meant to be worn in public without a definite sexual purpose. Upskirt photos however are considered to be sexually charged content.
A person can be fully clothed but as long as they are shown participating in a sexual activity, it would still be an offense to share such images without their permission.
The actual media protected by this law may be found –
- Online digital format (shared and stored on WhatsApp, Snapchat, Facebook, etc. servers)
- Data inside a mobile phone or similar device
- Hard copy or printed media – photographs, films, etc.
- Electronically stored (in hard disks or other storage medium)
- Copies of the original protected intimate media (including screenshots)
- Digitally enhanced or manipulated media (images that are Photoshopped from regular non-sexual content, or digitally manipulated like Deepfakes, etc.)
- Sexting and sexual images sent by text messenger apps.
How can the laws on intimate image abuse be reformed to better protect victims?
Although “Revenge Porn” had already been long criminalized in the Criminal Justice and Courts Act 2015, specifically
Section 33. Disclosing private sexual photographs and films with intent to cause distress
(1)It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made—
(a) without the consent of an individual who appears in the photograph or film, and
(b) with the intention of causing that individual distress.
With the corresponding punishment:
(9) A person guilty of an offence under this section is liable—
(a )on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both), and
(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both).
(10) Schedule 8 makes special provision in connection with the operation of this section in relation to persons providing information society services.
Many young people are unprepared for the malicious use of intimate images. Victims may find blame themselves or find no support for having allowed such images to be taken (but not shared) and the scope of fear and coercion should not be underestimated. In addition, those who share such images may not realize the impact on the victims and themselves for criminal culpability.
Proposal to reinforce protections under the law
Experts have criticized that the law has not kept up with the dizzying speed of changes in technology and online social behaviours.
It is proposed that the type of intimate images be better defined – for example, upskirt photos are a criminal offense, but downblouse shots are not. The law also does not yet cover photomanipulated images, i.e., transforming the depiction of a person into a pornographic image.
Sharing with the motivation of causing distress or sexual gratification is made illegal under the law, but not quite yet the threat to share and disseminate intimate images onto the Internet. The law only comes into play after the damage has been done.
Hadaway & Hadaway for divorce solicitors in the North East UK
Four new offences
The Law Commission has proposed four new offenses for the scope of this law:
- A “base” offence which prohibits the taking or sharing of an intimate image of a depicted person where they do not consent and there is no reasonable belief in consent by the perpetrator.
- An additional more serious offence of taking or sharing an intimate image without the consent of the depicted person, with the intention to humiliate, alarm or distress the victim.
- A further additional serious offence of taking or sharing an intimate image, without the consent of the depicted person and the perpetrator having no reasonable belief in consent, for the purpose of either their own or someone else’s sexual gratification.
- An offence of threatening to share an intimate image where the threat is either intended to cause the depicted person to fear that the image will be shared or the perpetrator is reckless as to whether the depicted person will fear the threat will be carried out.
Using this framework, it would no longer be necessary to first prove an intent to cause distress in order to prosecute cases. They reported statements from many victims that requiring proof of a specific motive has led to no prosecution occurring.
Third parties not necessarily that of the first perpetrator have no actual rationale other than common decency to desist from such behaviour.
Automatic victim anonymity and protections
One proposed change is to grant victims of the new intimate image abuse offences lifetime anonymity as well as automatic eligibility for special measures (such as giving evidence via a live link or behind a screen at trial). They would not have to expose themselves to further identification or harassment.
On a conviction, where a sufficiently serious offence had been committed, a sentencing court would be required to add the offender to the ‘sex offenders’ register’. This would ensure that the police can monitor their whereabouts and appropriately risk manage sex offenders within the community.
Sexual Harm Prevention Orders would also be available in case the courts feel it would be necessary to protect the public or particular members of the public from sexual harm. This applies to the offender as someone who presents a serious risk to the public and would impose restrictions on their travel, ability to access certain websites, or to engage in particular activities on the internet. They may also be prohibited from certain forms of employment.
Enhancing the scope of intimate images
In addition to criminalizing certain behaviours – such as the disclosure of private sexual images, upskirting, voyeurism, and to take such photos without consent though force and coercion (i.e., sexual abuse and assault) – the proposals include the following as forms of forms of intimate image abuse:
- Sharing an altered image– including sexualised photoshopping and deepfake pornography where the victim’s face is put on the body of a pornographic actor.
- Downblousing– taking an image, usually from above, down a female’s top. This behaviour would become an offence like upskirting already is.
- Sharing an intimate image of the depicted person with the depicted person – showing the image of the person to themselves without yet it being shown to the public would become an offense in itself, if particularly for the purpose of causing the victim distress, as means to exert control and power, to extort money or further images or leading to a further threat of some sort.
- Recording or streaming rapes or sexual assaults– including but not limited to cases where the victim is incapacitated whilst being attacked.
- Sextortion – threatening to share an intimate image to extort the victim for money or more images (or both).
Getting your photos and videos removed
If you believe you or someone who know has been a victim of the malicious sharing of intimate images, your first instinct may be to get those images and videos removed. However, doing so immediately may not be so wise if you wish to prosecute the offender since the police may yet be collecting evidence.
Consult with an internet and social media aware attorney as soon as you can. Particularly for images of children under 18, since the possession of such content may add to the legal risk of everyone involved.
An adult who wishes to have their photos removed from the public may take these steps after consultation:
- Find out which website have a copy of the image or video
You can perform a reverse image search on Google by uploading the photo in question to Google Images and it will algorithmically search for similar content. Such uploaded images will not be stored on their server and will be deleted as soon as you close the browser.
- Contact the owner of the website(s) in question
The person in charge of a website is called the webmaster and will usually have an email address somewhere on their website. If you do not know who is responsible for said website, a more technical consultant may assist you to find the actual owner of the webspace via domain name registration lookup.
- Report unwanted content on social media
Social media sites don’t have one responsible webmaster, but rather a standing policy to have problematic users or content removed when reported. They will very likely comply as soon as the report passes though their backlog since social media sites are also very litigation-averse.
- Report search engines to stop your images from showing up
Google, for example, cannot remove images from websites owned by other people. They can however prevent images from showing up in their search results. Similar search engines have policies and lines of communication to protect sensitive personal information – not just intimate images, but also samples of signatures, credit card numbers, etc.
Stay safe online
Social media has made it almost impossible to retain anonymity over the internet, a far cry from the early World Wide Web which had privacy and anonymity as its primary virtue. However, minimizing exposure of your sensitive information and separating your personal and online personas still helps in reducing risk.