Comment: We can’t tackle revenge porn using existing laws
By Julian Huppert
There has been a lot of discussion recently about how to deal with the growing practice of revenge porn – the awful practice where people, typically though not necessarily ex-partners, spread intimate pictures or videos of their ex around the internet.
These images were typically taken with consent, or by the victim themselves – but there was no consent for them to be broadcast to everyone, but rather an expectation that they would be kept secret.
This causes immense harm to the victims – the shame and humiliation of having their naked or sexually explicit pictures shown to the world stays with them for a long time. People lose their self-confidence, their jobs, and in some cases have committed suicide as a result.
In the past, pictures were harder to take, and much harder to distribute so widely – this is largely a phenomenon of our internet age.
There is no doubt that there is a problem here that needs to be tackled, but there is some debate about how to do so. Some people cite a range of existing laws, and it would be good if revenge porn was covered by them – but in general it isn't.
The recent report from the House of Lords communications committee listed a range of possible laws, but concluded "it would be desirable to provide a proportionately more accessible route to judicial intervention". I agree, and that is why I have worked with my colleagues to draw up appropriate new legislation.
But first, it is worth looking at existing legislation and why it doesn’t work in many cases.
The Protection from Harassment Act 1997 is intended to stop this sort of general behaviour, but it requires a repeated action. Once these intimate pictures have been posted online just once, the damage is done. The perpetrator doesn't need to keep doing this in order for the images to be spread around the world. So this does not provide a response in all cases of revenge porn.
Section 127 of the Communications Act 2003 – most notorious for the Twitter joke trial – has been suggested as a remedy, but as it applied in general to the sending of material that is "grossly offensive or of an indecent, obscene or menacing character", it is incapable of distinguishing between sending a topless image of an ex and any other topless image. If it covers one, it covers the other, which would be overkill. Looking at an image from playboy is different from revenge porn.
A similar problem applies with the Malicious Communications Act 1988, which requires the message to be "indecent or grossly offensive", but also must cause distress or anxiety "to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated". Hence it doesn't apply to the revenge porn case if the offender doesn't tell the victim that they posted the images – or at least claim they didn't mean them to know.
The Sexual Offences Act 2003 has the offence of voyeurism, but that only applies where there was no consent for the taking of the images, not the revenge porn cases, where the image was consensual, but the distribution isn't.
The committee suggested that there may be recourse to the information commissioner via the Data Protection Act, but that seems like a rather implausible way to tackle this problem.
Lastly, they highlight that in principle a privacy injunction is available via the High Court, but the vast majority of victims would not have the resource or inclination to take up such a case.
It therefore seems clear that the current legislation does not provide a way to tackle the core of the problem – various laws touch on it, and may apply in a few cases, but many instances of revenge porn, no matter how harmful, are simply not covered.
That is why I and my colleagues in the House of Lords have tabled an amendment to make it criminal. None of us are the sort who immediately reach for new criminal offences, but in this case we have been persuaded it is needed. It got substantial support from across the House of Lords when it was debated initially and I hope that with some redrafting the House of Lords will agree to it.
There was another amendment proposed to tackle this problem, by making it an offence to spread such images for sexual gratification, but this is flawed – it focuses on the wrong word in the phrase 'revenge porn'. The problem is the revenge aspect, not the porn aspect. None of us intend to use this serious issue to try to ban consensual amateur pornography, for example.
Of course, legislation alone will not fix the problem. It needs to be properly enforced, which means ensuring that the police take this issue seriously. It also needs people to be educated – the aim is to stop revenge porn, not to punish people after it has happened. I would like to see compulsory sex and relationships education, including discussing issues about consent, at all schools for all pupils.
For at heart, this is an issue of consent. Consent for a photo to be taken does not mean consent for the entire world to see it. We must take action.
Julian Huppert is the Liberal Democrat MP for Cambridge
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