Once the preserve of the celebrity sex tape, the prevalence of smart phones and the dominance of social media has meant that it has never been easier for intimate photographs or footage to be taken and circulated. The government has recently brought out new legislation to tackle this trend. Dubbed ‘revenge porn’, this increasing phenomena is once again in the media spotlight since a documentary by Anna Richardson aired on Channel 4 recently. According to The Independent, complaints to a Government helpline soared following the broadcast and at least two cases have been reported in the press: a man from Merseyside lost his appeal over his sentence (BBC News) and a jilted boyfriend from South London is also facing custody (Evening Standard).

What does this new legislation actually mean? 

Under the Criminal Justice and Courts Act it is now an offence to disclose private sexual photographs or films without the consent of an individual who appears in them.  To be guilty of the offence you must intend to cause the person in the material distress.  The wording of the offence does not limit it to distribution of images or footage electronically.  It covers any situation whereby someone gives or shows the sexual photographs or films to another, or makes these available.  

Some question whether the introduction of this specific offence is necessary given that existing legislation such as the Malicious Communications Act 2003 has been previously deployed in similar circumstances.  It may be difficult for alleged crimes under this new legislation to be detected and investigated in the first place as many potential victims will be unaware that this deeply private material has been made available to others either on the internet or on people’s smart phones passed around schools and offices. It is debatable whether the authors of the many revenge pornography websites could themselves be prosecuted for making these images available via their sites, although it could be difficult for the prosecution to prove that the operators of these sites, intended to cause the individuals in the material distress.  

Would the operators of these sites themselves be liable for aiding, abetting or encouraging the offence?  One of the difficulties in this scenario, as with many internet based crimes, is identifying the individual behind the IP address.  

With the offence punishable with up to two years imprisonment the government must hope that aggrieved partners may think twice before pressing send. However the offence is in its infancy and it remains to be seen whether specifically criminalising this behaviour will have any deterrent effect.