The Government amendments to the Criminal Justice and Courts Bill that are intended to create the new ‘revenge porn’ offences have now been published. The proposals consist of three new clauses and a related schedule and are reproduced below.
The potential breadth of the offence may surprise some (would passing on links to Jennifer Lawrence pics count?) and the definitions of ‘disclose’, ‘private’ and ‘sexual’ will no doubt be the cause of endless debate. The definitions might be thought to rely to too great an extent on the common sense of jurors and magistrates.
The passage of these amendments through Parliament may not be smooth. While no politician in the Commons is likely to resist the amendments, it may be recalled that the House of Lords Communication Committee published a report in July which took the view that there was no need for new legislation to cover social media offences, including those related to revenge porn and that existing laws and guidance, properly applied, could do the job.
“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
at large or to a section of 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.”
Insert the following new Clause—
“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).”
Insert the following new Clause—
“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.”
The relevant schedule is as follows:
“SCHEDULE
DISCLOSING PRIVATE SEXUAL PHOTOGRAPHS OR FILMS: PROVIDERS OF INFORMATION
SOCIETY SERVICES
England and Wales service providers: extension of liability
1 (1) This paragraph applies where a service provider is established in
England and Wales (an “E&W service provider”).
(2) Section (Disclosing private sexual photographs and films with intent to cause
distress) applies to an E&W service provider who—
(a) discloses a photograph or film in an EEA state other than the
United Kingdom, and
(b) does so in the course of providing information society services,
as well as to a person who discloses a photograph or film in England and
Wales.
(3) In the case of an offence under section (Disclosing private sexual
photographs and films with intent to cause distress), as it applies to an E&W
service provider by virtue of sub-paragraph (2)—
(a) proceedings for the offence may be taken at any place in England
and Wales, and
(b) the offence may for all incidental purposes be treated as having
been committed at any such place.
(4) Nothing in this paragraph affects the operation of paragraphs 3 to 5.
Non-UK service providers: restriction on institution of proceedings
2 (1) This paragraph applies where a service provider is established in an EEA
state other than the United Kingdom (a “non-UK service provider”).
(2) Proceedings for an offence under section (Disclosing private sexual
photographs and films with intent to cause distress) may not be instituted
against a non-UK service provider in respect of anything done in the
course of the provision of information society services unless the
derogation condition is satisfied.
(3) The derogation condition is satisfied where the institution of
proceedings—
(a) is necessary for the purposes of the public interest objective,
(b) relates to an information society service that prejudices that
objective or presents a serious and grave risk of prejudice to that
objective, and
(c) is proportionate to that objective.
(4) “The public interest objective” means the pursuit of public policy.
Exceptions for mere conduits
3 (1) A service provider is not capable of being guilty of an offence under
section (Disclosing private sexual photographs and films with intent to cause
distress) in respect of anything done in the course of providing so much
of an information society service as consists in—
(a) the provision of access to a communication network, or
(b) the transmission in a communication network of information
provided by a recipient of the service,
if the condition in sub-paragraph (2) is satisfied.
(2) The condition is that the service provider does not—
(a) initiate the transmission,
(b) select the recipient of the transmission, or
(c) select or modify the information contained in the transmission.
(3) For the purposes of sub-paragraph (1)—
(a) the provision of access to a communication network, and
(b) the transmission of information in a communication network,
includes the automatic, intermediate and transient storage of the
information transmitted so far as the storage is solely for the purpose of
carrying out the transmission in the network.
(4) Sub-paragraph (3) does not apply if the information is stored for longer
than is reasonably necessary for the transmission.
Exception for caching
4 (1) This paragraph applies where an information society service consists in
the transmission in a communication network of information provided
by a recipient of the service.
(2) The service provider is not capable of being guilty of an offence under
section (Disclosing private sexual photographs and films with intent to cause
distress) in respect of the automatic, intermediate and temporary storage
of information so provided, if—
(a) the storage of the information is solely for the purpose of making
more efficient the onward transmission of the information to
other recipients of the service at their request, and
(b) the condition in sub-paragraph (3) is satisfied.
(3) The condition is that the service provider—
(a) does not modify the information,
(b) complies with any conditions attached to having access to the
information, and
(c) where sub-paragraph (4) applies, expeditiously removes the
information or disables access to it.
(4) This sub-paragraph applies if the service provider obtains actual
knowledge that—
(a) the information at the initial source of the transmission has been
removed from the network,
(b) access to it has been disabled, or
(c) a court or administrative authority has ordered the removal from
the network of, or the disablement of access to, the information.
Exception for hosting
5 (1) A service provider is not capable of being guilty of an offence under
section (Disclosing private sexual photographs and films with intent to cause
distress) in respect of anything done in the course of providing so much
of an information society service as consists in the storage of information
provided by a recipient of the service if sub-paragraph (2) or (3) is
satisfied.
(2) This sub-paragraph is satisfied if the service provider had no actual
knowledge when the information was provided—
(a) that it consisted of or included a private sexual photograph or
film,
(b) that it was provided without the consent of an individual who
appears in the photograph or film, or
(c) that the disclosure of the photograph or film was provided with
the intention of causing distress to that individual.
(3) This sub-paragraph is satisfied if, on obtaining such knowledge, the
service provider expeditiously removed the information or disabled
access to it.
(4) Sub-paragraph (1) does not apply if the recipient of the service is acting
under the authority or control of the service provider.
Interpretation
6 (1) This paragraph applies for the purposes of this Schedule.
(2) “Disclose” and “photograph or film” have the meanings given in section
(Meaning of “disclose” and “photograph or film”).
(3) “Information society services”—
(a) has the meaning given in Article 2(a) of the E-Commerce
Directive (which refers to Article 1(2) of Directive 98/34/EC of
the European Parliament and of the Council of 22 June 1998
laying down a procedure for the provision of information in the
field of technical standards and regulations), and
(b) is summarised in recital 17 of the E-Commerce Directive as
covering “any service normally provided for remuneration, at a
distance, by means of electronic equipment for the processing
(including digital compression) and storage of data, and at the
individual request of a recipient of a service”,
and “the E-Commerce Directive” means Directive 2000/31/EC of the
European Parliament and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular electronic
commerce, in the Internal Market (Directive on electronic commerce).
(4) “Recipient”, in relation to a service, means a person who, for professional
ends or otherwise, uses an information society service, in particular for
the purposes of seeking information or making it accessible.
(5) “Service provider” means a person providing an information society
service.
(6) For the purpose of interpreting references in this Schedule to a service
provider who is established in England and Wales or an EEA state—
(a) a service provider is established in England and Wales, or in a
particular EEA state, if the service provider—
(i) effectively pursues an economic activity using a fixed
establishment in England and Wales, or that EEA state,
for an indefinite period, and
(ii) is a national of an EEA state or a company or firm
mentioned in Article 54 of the Treaty on the Functioning
of the European Union;
(b) the presence or use in a particular place of equipment or other
technical means of providing an information society service does
not, of itself, constitute the establishment of a service provider;
(c) where it cannot be determined from which of a number of
establishments a given information society service is provided,
that service is to be regarded as provided from the establishment
at the centre of the service provider’s activities relating to that
service.”
