Should victims of revenge porn be given anonymity?

The BBC has reported that campaigners have called for revenge porn to be classed as a sexual offence in order that victims get the same automatic anonymity as the victims of rape or other sexual offences.

Here our Managing Partner and expert in sexual offences legislation, Louise Straw comments on the issues surrounding revenge porn, anonymity and the consequences of convictions for sexual offences.

The Ministry of Justice has today announced that the Law Commission is to review the law in relation taking, making and sharing (known as revenge porn) intimate images without consent. This is as a result of a recommendation made in the Abusive and Offensive Online Communications Scoping Report published by the commission in November 2018 which concluded that the law should be reviewed to determine if it is adequate to deal with new technology including “deepfake” pornography.

What is Deepfake Pornography?

Deepfake Pornography is a pornographic image or movie in which the participant’s facial images have been changed using specialist face-swap software to superimpose existing images into the source images and thereby creating a new image or video. The face-swap technology is a class of machine learning system which uses a technique known as generative adversarial network which learns to generate new data within the new image with the same statistics as the training or existing image.

In recent years many videos and images have emerged online purporting to show celebrities having sexual intercourse.

Is Deepfake Pornography Illegal?

In short the answer is yes, if the image or video is sent electronically or amounts to harassment. The current law on revenge porn is that it is an offence is committed when a private sexual photograph or film is disclosed without the consent of the individual who appears in it. The offence was created for instances where couples had made private videos consensually but then after they had split up one of them disclosed it in an act of vengeance. The difficulty under this legislation is that it raises the question of whether the celebrity or person who is the subject of the Deepfaking is actually appearing in the image or movie?

So whilst you may not be prosecuted under the revenge porn laws there is other legislation that could lead to you appearing in court.

  • Deepfaking could be an offence under S127 Communications Act 2003 where a person is guilty of an offence if he or she sends a message over a public electronic communication network which is indecent, obscene or menacing.
  • Persons involved in deepfake pornography could also face prosecution under the harassment act which makes it an offence for a person to pursue a course of conduct which amounts to and they know or ought to know, amounts to harassment. This was the case for city worker David Buccheri who was reported to have been jailed for 16 weeks for posting fake images of a work colleague in an attempt to discredit her.
  • Prosecutions could also be made under Section 1 of the Malicious Communications Act 1998 which creates an offence for a person to send an electronic communication to another person that conveys a message that is indecent, grossly offensive or information which is false. The maximum sentence for this offence is two years imprisonment.
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Are the laws concerning revenge porn adequate?

As highlighted above in some circumstances individuals can be prosecuted under existing legislation for Deepfake pornography but this is another matter that the project will consider. The second phase of the project will look at “revenge pornography” provisions under S33 Criminal Justice & Courts Act 2015. The Criminal Law Commissioner Professor David Ormerod Q.C. said “If the criminal laws are not up to scratch, we will propose reform that protects victims more effectively from this criminal behaviour”.

It should be relatively simple to insert the word “pseudo” into the existing act, as is the case in relation to indecent images cases.

Should revenge porn be classed as a sexual offence?

As reported above campaigners are calling for this on the basis that victims will get the same automatic anonymity as victims of sex offences. Should the victims of revenge porn be given anonymity? Well for me, I cannot see any real issue with anonymity, but in my view that that is not the right question being asked. In order to determine the right question, one must first look at the other consequences.

What are the consequences of being convicted of a sexual offence?

Persons convicted of sexual offences are automatically the subject of notification requirements (commonly known as the sex offender’s register) which places obligations on them to keep the police informed of where they live and travel plans and were introduced as part of the Sex Offenders Act 1997.

The requirements were retrospectively changed by the Sexual Offences Act 2003 and now require an individual to provide further information including details of all foreign travel, children within the household, bank and credit card information and what passport or other identity documents are held. Breach of the notification requirements is a criminal offence punishable with up to five years imprisonment. Convicted offenders are the subject to the requirements for a minimum of 2 years but can be imposed indefinitely depending upon the offence and sentence imposed.

Sexual Harm Prevention Orders are also often made which can place further restrictions on movement, associations and internet use etc. Again, breaching such an order could lead to imprisonment for up to five years.

Convictions or cautions for serious sexual offences are also ‘autobar’ offences as defined by Safeguarding Vulnerable Groups Act 2006 which means that names will appear on a barred list meaning that they will be unable to gain work in any ‘regulated activity’ such as health care worker, teaching assistant or social worker.

In conclusion for me, the real question is not whether victims of revenge porn should be given anonymity, it is whether perpetrators of revenge porn should be treated as sex offenders?

Imagine a scenario where a young woman who has recently split up with her boyfriend sends a naked picture of him to a Whatsapp group, one of the members of the group takes offence and reports the matter to the police. Should she be on the sex offenders register, barred list and be the subject of a Sexual Harm Prevention Order?

One would hope that Law Commission will consider examples such as this when conducting their review.

Louise Straw - Burton Copeland