Reform of the Law on Intimate Images in the Online Safety Bill

Following a detailed review of the law in this area by the Law Commission in 2022, the Government has announced amendments to the Online Safety Bill that will revamp, consolidate, and streamline the law on Internet images. Many of the Law Commission’s proposals are set to be adopted in full when the bill is due to return to the House of Commons in December 2023.

In this briefing, BSQ examines the new offences in the proposed legislation.

The Existing Law

Three separate offences capture the taking, making, and sharing of intimate images without consent at present –

The disclosure offence – section 33 of the Criminal Justice and Courts Act 2015 criminalises the disclosing and threatening to disclose of private sexual photographs in the films.

The voyeurism offences – section 67 of the Sexual Offences Act 2003 symbolises the recording of an image of a person doing a private act.

The upskirting offence – section 67 9a) of the Sexual Offences Act 2003 criminalises the recording of an image of genitals and buttocks underneath clothing.

Contrary to section 67(a) of the Police, Crime and Sentencing Courts At 2022 it is also illegal to capture a recording of an image of someone who is breastfeeding.

Law Commissions Report

Several new offences will be created if the legislation passes as it is currently drafted. The rationale behind them is to close gaps in the existing law which allow some offenders to avoid prosecution for conduct that the Government believes should be criminalised.

For example, it can be hard to obtain convictions for the voyeurism, disclosure and upskirting offences as they all require proof of a specific intent on the part of a perpetrator e.g., that they intended to obtain sexual gratification or to cause humiliation alarm or address to the victim. Often defendants can avoid criminal liability in such cases by claiming they had another reason or motivation to take or share an intimate image without consent.

The Law Commission believes that the fact that an image is taken or shared without consent is sufficiently wrongful in itself as it as it causes harm to the victim regardless of the motivation to justify criminalisation.

The Proposals

The base offence suggested by the Law Commission – of taking and sharing videos or images without consent – makes this conduct an offence to regardless of motive. The Government hopes that cases that may not have resulted in prosecution previously can be charged under this new law. The intimate image must be taken or shared intentionally. The base offence is summary only and carries a maximum sentence of six months imprisonment. 

Three enhanced offences are proposed. These are all “either way “and can be tried either way in the Magistrates Court or at the Crown Court. These more serious offences designed to catch offenders who act with a particular motive that makes their behaviour more culpable.

The three enhanced offences proposed include:

·       Taking an intimate image with intention to humiliate, alarm or cause distress.

·       Taking or sharing an intimate image with an intent to obtain sexual gratification.

·       Threatening to share an intimate image intending to cause a victim to fear that the threat will be carried out or being reckless as to whether they will fear that.

These offences carry maximum sentences of 2 to 3 years imprisonment on indictment in the Crown Court or a penalty not exceeding the general limit in the Magistrates Court.

Scope 

There is a standard definition an “intimate image” which applies to all offences. It includes sexual, nude, or partially nude or toileting images. Toileting images fall within the definition even if they do not necessarily capture the victims’ genitals and buttocks.

A sexual image is defined as something that a reasonable person would consider to be sexual because of its nature – or taken as a whole, is such that a reasonable person would consider it to be sexual.

Conduct ordinary seen on a public street, such as kissing as well as intimate images taken in public are not caught by this offence. In the context of a sharing offence, images previously consensually shared in public are also excluded. 

Some inconsistencies in the present law are addressed by these definitions. For instance, at the moment the taking of images of a person’s exposed breasts are caught by the voyeurism offence. It is not illegal to share these images however as they are outside the scope of the disclosure offence which applies to images of exposed genital or pubic area (unless they are otherwise sexual).

Defences

A defence of reasonable excuse to the base offence applies. The legal burden will be on the defence to prove this on the balance of probabilities.

Examples of situations where prosecutions should not be considered are also provided by the Law Commission. They include where the taking or sharing of an intimate image is necessary for the purposes of protecting, detecting, investigating, and prosecuting crime. The Law Commission also recommends that family members and friends taking pictures of their children and images taken in connection with the medical care or treatment of the child where there is parental consent do not warrant criminalisation.

Conclusion

There is clearly a strong case for the reform of the law in this area and it is no surprise that the Governments amendments to the Online Safety Bill are likely to have cross-party support.

The implications of these changes in terms of sentencing practice and workload for the criminal justice system may however be profound. As the vast majority of such conduct arises where images are shared for the purpose of sexual gratification, the enhanced offence will often be available in these types of cases. There may be a danger that Prosecutors opt to charge the enhanced sexual gratification offence rather than the base offence in future causing a significant increase in the workload of already overburdened Crown Courts as well as potentially ramping up sentencing in this area. 

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