With several cases of revenge porn involving celebrities featured in recent media reports, we consider the new criminal offence created by the Criminal Justice and Courts Act which received Royal Assent on the 12 February 2015.

The practice is representing a number of individuals currently under investigation for this allegation.

The New Offence of Revenge Porn – s. 33 of the Criminal Justice and Courts Act

The revenge porn offence is directed at those that place online, distribute or share intimate images of others without their consent. Often this arises at the end of a relationship and involves pictures or images of a former partner.

Section 33 of the act makes it an offence for a person to disclose a private sexual photograph or film without the consent of the person featuring in it and with intention of causing that individual distress. It is punishable by up to 2 years imprisonment and/or a fine. As an either way offence it can be tried in the Crown Court on the magistrates Court – the Magistrates maximum sentencing powers are 6 months at present. It applies to images that are shared via a mobile, off-line or online or email.

Importantly, the offence is not committed if the photograph or film was only disclosed to the victim.

Journalists will have a defence to the charge if they can show a public interest in the publication (section 34). Another defence is available if the accused can demonstrate that he or she reasonably believed the recording had previously been disclosed for reward with the consent of the person featuring in it.

Section 35 of the act provides a definition of the terms "sexual" and "private." Conduct of a kind ordinarily seen in public (such as kissing) would not be considered private. Sexual material is defined to include a recording showing genitals or the pubic area may be.

Overlap With the Old Law

 Although most prosecutions will now take place under the new law, Revenge porn could also fall within any of the following pre-existing offences:

• Section 1 of the Malicious Communications Act 1988 (sending of electronic communications that are indecent, grossly offensive, threatening or false with intent to cause distress or anxiety to the recipient.)

• Section 127 of the Communications Act 2003(to send or cause to be sent through a 'public electronic communications network' a message that is 'grossly offensive' or of an 'indecent, obscene or menacing character'.

• Harassment  

• The Protection of Children Act 1978 (If the images are of a victim under 18)

• The Sexual Offences Act 2003 (if intimate images are used to coerce victims into further sexual activity).

• The CPS issued detailed guidelines for prosecutors on these offences in 2014 stating that -

"Due to the very personal nature of 'revenge pornography' prosecutors are being asked specifically to consider the impact on the victims involved. The new guidance also makes clear that the context of each case needs to be considered alongside current guidelines to ensure that the most appropriate legislation is used when prosecuting. The public, and indeed those intent on attacking former partners in this way, can now see clearly that this is a crime that can and will be prosecuted."

A fact sheet for police officers has also been issued by the Ministry of Justice.

The MOJ has launched a campaign aimed at raising awareness of the new offence – the Be Aware B4 You Share campaign – stating that :-

“As part of the campaign victims will be encouraged to report incidents to the police. Officers may wish to familiarise themselves with the details of the new offence and be prepared for a possible rise in victims coming forward.

We anticpate a large number of prosecutions for this offence in the coming future.

If you are contacted by the police and require expert representation, please contact us.