My Lords, the term “revenge pornography” refers to the publication, usually but not always, on the internet, of intimate images of former lovers without their consent. This thoroughly nasty behaviour generally involves the perpetrator in taking advantage of his or her possession of sexually explicit images, generally taken or obtained in private during the course of an intimate relationship in circumstances where the parties, and certainly the party photographed, had every right to expect that the images would remain private.
Obtaining such images has become more common and much easier with the prevalence, popularity and sophistication of smartphones, with their ability to take or record high quality images, still and video, instantly and simply, with accompanying sound in the case of video. It is set to become even easier to take such images with the advent of cameras installed in glasses and yet further improvement in high definition video cameras in phones.
The widespread publication of such images causes, and is generally intended to cause, distress, humiliation and embarrassment for the victim—hence the name “revenge porn”. She or he—the victims are usually but not exclusively women—face the humiliation of their most private moments being exposed to family, friends, employers and the world at large. It is entirely predictable that such exposure can cause serious psychological and emotional damage even to those with robust personalities. Suicides as a result of such publications have been recorded. Worse still, the damage may often be increased because it follows the trauma of relationship breakdown and is caused by someone with whom the victim had previously been close. Publication can cause havoc in personal and family relationships and in relationships at work. The betrayal and the hurt it causes could hardly be worse. Such behaviour has been characterised by academics in the field as a form of abuse and I suggest that such characterisation is entirely accurate.
I have no hesitation in concluding that this practice should be criminalised and in asking your Lordships to pass legislation accordingly. I was therefore extremely pleased that in response to our Second Reading debate my noble friend the Minister indicated that the Government would be open to amendments of this Bill to that effect. I was also delighted when my noble friends Lady Berridge and Lady Morris of Bolton laid their Amendment 40, which is also in this group. I hasten to add that in my view there is neither magic nor any monopoly of wisdom in any particular wording.
The point is to secure legislation to criminalise such behaviour with the most appropriate statutory language that can be found. I would mention, however, that I do have some concerns about my noble friends’ formulation of the proposed offence, to which I will come in a moment.
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I will explain the draft clauses in our amendments. The offence would be committed by publication of an image that is sexually explicit or pornographic; the publication would have to be of an identifiable person as defined; it would have to be without the consent of that person or at least in circumstances where the perpetrator did not believe he had such consent; and the image must not have been published before. It would be a defence for the perpetrator to prove that he believed he had the consent of the person in the image or that the publication was unintentional. The offence would be triable either way and would carry a maximum sentence of 12 months imprisonment and/or a fine on indictment or six months and/or a fine on summary conviction.
The mischief to which these proposed clauses are directed is fairly and squarely the publication of the image. The criminal behaviour is the publication and the effects we seek to avoid are the hurt, humiliation and distress caused to the victim by such publication.
I have three doubts about the formulation of the offence proposed by my noble friends Lady Berridge and Lady Morris of Bolton. The first is that in their draft clause an offence would be committed only if the publisher intended that someone looking at the image did so for the purpose of obtaining sexual gratification. That may be an undesirable consequence of publication, but in our view such intention is irrelevant to the criminality of the publisher. What we wish to target is the humiliation of the victim and that is the same whether or not there is any intention of affording sexual gratification to third parties.
Our second concern is that for the offence to be committed under their formulation it would be necessary for the image to portray the person portrayed in it doing a private act, defined as a sexual act not of a kind ordinarily done in public. For an image to cause real distress, it is not necessary for the subject of the image to be actually engaged in a private act. The fact of being exposed naked or semi-naked in a compromising position or in compromising circumstances may be just as devastating. It does not seem to us that a sexual act should have to be portrayed in the image before an offence could be committed.
Finally, and I accept less importantly, we are not convinced that it should be necessary for the person in the image to be exposed or semi-exposed in the way described in my noble friends’ proposed new subsection (3)(c)(i) for an offence to be committed. While I can see that an image of a person not so exposed is unlikely to be reasonably classifiable as sexually explicit, I am not sure that can be ruled out and I suggest the requirement is unnecessary.
However, the important thing is to secure the criminalisation of this behaviour. Long gone are the days when we should regard physical harm as a necessary ingredient of an offence against the person. The degree
to which malicious individuals can hurt innocent victims by publication on the internet of images of their most intimate moments is ample justification, I suggest, for our invoking the criminal law to prevent and punish such behaviour. I beg to move.