Revenge porn in the UK

Naturists in Britain have written to Chris Grayling, the Justice Secretary complaining that the new Revenge Porn Bill discriminates against people who practice nudism.

Naturists note that the Bill does not distinguish between pornography and nudity. The Bill states that it will be an offence to post online, or publish in hard copy, images showing genitals exposed .

However, nudists claim that Innocent full-frontal naturist photography , showing family and friends naked on a legal nudist beach, at a sun club or in a private garden, might then be deemed, in law, as pornographic .

The Ministry of Justice said the offence would cover photographs or films which show people engaged in sexual activity or depicted in a sexual way, or with their genitals exposed, where what is shown would not usually be seen in public.

Naturist writer Rayner Otter has written to Grayling asking him to differentiate in the Bill between plain, full-frontal nudity and pornography.

Fiona Ashley, a regular contributor to the magazine H&E naturist and a member of British Naturism (BN) said:

Revenge porn is clearly abhorrent. I also find it equally abhorrent that images of naturists are classed as pornography in this poorly-conceived Bill. The intelligent mandarins of Whitehall need to do some more work on this one.

Naturist commentator, Dr James Avery, added:

The unlikely event of this Bill going through Parliament could signal a return to extreme Puritanism and censorship. That could eventually mean covering offending genitalia with fig leaves on some of the finest works of art in our galleries.

The government has published the details of a new law targeting revenge porn:

Publication of private sexual images

(1) It shall be an offence for a person to publish a private sexual image of another identifiable person without their consent where this disclosure  causes distress to the person who is the subject of the image.

(2) A person is not guilty of an offence under subsection (1) if he or she-—

(a) reasonably believed that the person who is the subject of the image had consented to its publication;

(b) reasonably believed that the publication of the image would not cause distress;

(c) reasonably believed that the image had previously been published; or

(d) did not intend to publish the image.

(3) For the purposes of this section it is immaterial who owns the copyright of the published image.

(4) An offence under this section is punishable by—

(a) on conviction on indictment, imprisonment for a term of not exceeding 2 years or a fine (or both);

(b) on summary conviction, imprisonment for a term of not exceeding 6 months or a fine (or both).

Update: Unintelligible law

14th October 2014. See article from publications.parliament.uk . Thanks to Therumbler

Seems to be a disgraceful government proposed amendment to turn the law into gobbledegook where people will be found guilty whatever the circumstances, whilst journalists seem to have been excused any responsibility whatever the circumstances.

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.

(2) But it is not an offence for the person to disclose the photograph or film to the individual mentioned in subsection (1)(a) and (b).

(3) It is a defence for a person charged with an offence under this section to prove that he or she reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime.

(4) It is a defence for a person charged with an offence under this section to show that---

• (a) the disclosure was made in the course of, or with a view to, the publication of journalistic material, and

• (b) he or she reasonably believed that, in the particular circumstances, the publication of the journalistic material was, or would be, in the public interest.

(5) It is a defence for a person charged with an offence under this section to show that---

• (a) he or she reasonably believed that the photograph or film had previously been disclosed for reward, whether by the individual mentioned in subsection (1)(a) and (b) or another person, and

• (b) he or she had no reason to believe that the previous disclosure for reward was made without the consent of the individual mentioned in subsection (1)(a) and (b).

(6) A person is taken to have shown the matters mentioned in subsection (4) or (5) if---

• (a) sufficient evidence of the matters is adduced to raise an issue with respect to it, and

• (b) the contrary is not proved beyond reasonable doubt.

(7) For the purposes of subsections (1) to (5)---

• (a) consent to a disclosure includes general consent covering the disclosure, as well as consent to the particular disclosure, and

• (b) publication of journalistic material means disclosure to the public.

(8) 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.

(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 (Disclosing private sexual photographs or films: providers of information society services) makes special provision in connection with the operation of this section in relation to persons providing information society services.

(11) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference in subsection (9)(b) to 12 months is to be read as a reference to 6 months.

(12) In relation to an offence committed before section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force, the reference in subsection (9)(b) to a fine is to be read as a reference to a fine not exceeding the statutory maximum.

Meaning of disclose and photograph or film

(1) The following apply for the purposes of section (Disclosing private sexual photographs and films with intent to cause distress), this section and section (Meaning of private and sexual).

(2) A person discloses something to a person if, by any means, he or she gives or shows it to the person or makes it available to the person.

(3) Something that is given, shown or made available to a person is disclosed---

• (a) whether or not it is given, shown or made available for reward, and

• (b) whether or not it has previously been given, shown or made available to the person.

(4) Photograph or film means a still or moving image in any form that---

• (a) appears to consist of or include one or more photographed or filmed images, and

• (b) in fact consists of or includes one or more photographed or filmed images.

(5) The reference in subsection (4)(b) to photographed or filmed images includes photographed or filmed images that have been altered in any way.

(6) Photographed or filmed image means a still or moving image that---

• (a) was originally captured by photography or filming, or

• (b) is part of an image originally captured by photography or filming.

(7) Filming means making a recording, on any medium, from which a moving image may be produced by any means.

(8) References to a photograph or film include---

• (a) a negative version of an image described in subsection (4), and

• (b) data stored by any means which is capable of conversion into an image described in subsection (4).

Meaning of private and sexual

(1) The following apply for the purposes of section (Disclosing private sexual photographs and films with intent to cause distress).

(2) A photograph or film is private if it shows something that is not of a kind ordinarily seen in public.

(3) A photograph or film is sexual if---

• (a) it shows all or part of an individual's exposed genitals or pubic area,

• (b) it shows something that a reasonable person would consider to be sexual because of its nature, or

• (c) its content, taken as a whole, is such that a reasonable person would consider it to be sexual.

(4) Subsection (5) applies in the case of ---

• (a) a photograph or film that consists of or includes a photographed or filmed image that has been altered in any way,

• (b) a photograph or film that combines two or more photographed or filmed images, and

• (c) a photograph or film that combines a photographed or filmed image with something else.

(5) The photograph or film is not private and sexual if---

• (a) it does not consist of or include a photographed or filmed image that is itself private and sexual,

• (b) it is only private or sexual by virtue of the alteration or combination mentioned in subsection (4), or

• (c) it is only by virtue of the alteration or combination mentioned in subsection (4) that the person mentioned in section (Disclosing private sexual photographs and films with intent to cause distress)(1)(a) and (b) is shown as part of, or with, whatever makes the photograph or film private and sexual.

A new criminal offence of posting so-called revenge pornography on the internet will carry a maximum jail term of two years, Chris Grayling, the Justice Secretary, has announced.

Cruel and angry individuals who publish intimate pictures, videos or text messages to retaliate against their former partners will be targeted with the new law.

The proposal will be formally proposed in Parliament this week.

This is a significant change of tack by the government as a few days ago the Crown Prosecution Service (CPS) said that there were sufficient existing laws available to target revenge porn.

Speaking ahead of the debate in Parliament on Monday, Grayling said:

The fact that there are individuals who are cruelly distributing intimate pictures of their former partners without their consent is almost beyond belief. We want those who fall victim to this type of disgusting behaviour to know that we are on their side and will do everything we can to bring offenders to justice. That is why we will change the law and make it absolutely clear to those who act in this way that they could face prison.

The new law will cover the sharing of images both online and offline. It will mean that images posted to social networking sites such as Facebook and Twitter will be caught by the offence, as well as those that are shared via text message. Images shared via email, on a website or the distribution of physical copies will also be caught. Those convicted will face a maximum sentence of two years in prison.

The Ministry of Justice said the offence would cover photographs or films which show people engaged in sexual activity or depicted in a sexual way, or with their genitals exposed, where what is shown would not usually be seen in public.

Victims and others will be able to report offences to the police to investigate.

The CPS has updated its legal guidance regarding the prosecution of communications sent via social media with a clear section that explains how current legislation can be used to prosecute offences involving the malicious use of intimate media, sometimes referred to as 'revenge pornography'.

This clarification does not signify a new approach but clearly sets out for prosecutors which laws can be used to bring these cases to court. In all cases the CPS will apply the most appropriate law which best addresses the alleged offending. It is a matter for Parliament to decide if further laws are needed or if changes need to be made to the current legislation. A spokesperson for the CPS said:

No one should have to suffer the hurt and humiliation of 'revenge pornography' -- a nasty and invasive crime that appears, anecdotally at least, to have increased as social media use has gone up.

The Crown Prosecution Service prosecutes these cases using a range of current laws, and we have now clarified our legal guidance to set out clearly how these cases should be brought to court.

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."

Revenge pornography' is typically sexually explicit media that is publically shared online without the consent of the pictured individual and is usually uploaded by ex-partners.  The images are often accompanied by personal information including the pictured individual's full name, links to social media profiles and address, and are shared with the intent to cause distress or harm to the individual.

The guidance outlines:

• The issue in cases of 'revenge pornography' will be whether the message or communication is grossly offensive, indecent, obscene or false, not whether the image itself is indecent or obscene.
• Section 1 of the Malicious Communications Act 1988 deals with the sending of electronic communications which are indecent, grossly offensive, threatening or false, provided there is an intention to cause distress or anxiety to the recipient.
• Section 127 of the Communications Act 2003 makes it an offence 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'.
• Where there is more than one incident, or the incident forms part of a course of conduct directed towards an individual, a charge of harassment should be considered.
• Where the images may have been taken when the victim was under 18, prosecutors will consider offences under the Protection of Children Act 1978.
• In the most serious cases, where intimate images are used to coerce victims into further sexual activity, other offences under the Sexual Offences Act 2003 will be considered.

In order to prosecute, all cases must meet the evidential stage in the Full Code Test of the Code for Crown Prosecutors, and be considered to be in the public interest.

These offences would not normally be brought under the Obscene Publications Act.

We have informed the House of Lords Select Committee on Communications of this change, following their interest in the subject earlier this year. The CPS legal guidance on the prosecution of cases involving communications sent via social media were drafted specifically due to the rapid expansion of social media and can be found on  www.cps.gov.uk .