A new bill is currently proceeding through the Scottish Parliament which seeks to criminalise the distribution of a person’s intimate private images without their consent, commonly referred to as “revenge porn.”
With more people using social media than ever before, it is now possible to communicate and connect with people around the world within a matter of seconds. Information, photographs and videos can be shared instantly with the click of a button. Once released into cyber space, it is virtually impossible to prevent those from being shared further, (“going viral”) or to delete them.
Whilst most people use social media positively, as a way of interacting with their friends and family, unfortunately, a rising number of people are using social media in an attempt to threaten and humiliate their ex partners. Instances of so called “revenge porn” are on the rise around the world. This behaviour typically involves sharing intimate private images online of an ex. Although this can have a devastating impact on the victims of such an act, the sanctions for posting pictures of this kind have been fairly limited.
Whilst some behaviour may be caught under the existing criminal law, it has been recognised that the law is struggling to keep pace with rapid advances in technology, with the result that many perpetrators have managed to evade prosecution.
In October 2015 the Abusive Behaviour and Sexual Harm (Scotland) Bill was introduced in the Scottish Parliament.
This bill creates a new criminal offence in Scotland of sharing images or film of a person in an intimate situation, without their consent. It is also an offence to threaten to share such images.
To constitute an offence, there must be an intention to harm the person and “harm” is defined as “causing fear or alarm or distress” to the person.
If found guilty, a person can be sentenced to up to 5 years in prison or receive a fine, or both.
A person is in an intimate situation if:
(a) the person is engaging or participating in, or present during, an act which—
(i) a reasonable person would consider to be a sexual act, and;
(ii) is not of a kind ordinarily done in public,
(b) the person’s genitals, buttocks or breasts are exposed or covered only with underwear.
It will be a defence to a person accused of this offence if any of the following facts are established—
(a) The person consented to the photograph or film being disclosed,
(b) The accused reasonably believed that the person consented to the photograph or film being disclosed,
(c) The accused reasonably believed that disclosure of the photograph or film was necessary for the purposes of the prevention, detection, investigation or prosecution of crime, or
(d) The accused reasonably believed that disclosure of the photograph or film was in the public interest.
It will also be a defence if the person who makes the complaint was in the intimate situation shown on the image or film and that when they were in that situation, they were in a place where members of the public had access and members of the public were present.
If the Bill is enacted then Scotland will become one of the first countries to criminalise “revenge porn.” However, people should still be extremely careful about what photographs and images they appear in. Although these are often taken by couples who at the time, are in a loving and trusting relationship, if that later breaks down, it is all too easy to share those. Whilst a person may well prosecuted for that, by that point the victim will already have been likely humiliated and traumatised by their actions, with no way of controlling how many people have viewed the images. So before agreeing to such photographs or films being taken, it is worth pausing for thought and considering how well you trust the other person and what the potential consequences could be later on.
Rosey Scott is a specialist Family Law Solicitor. If you are or have been affected by domestic abuse or know someone who has contact Rosey on 03330 430150 or email rscott@thorntons-law.co.uk.
