Russell Webster looks at moves to review the law around sex images

The government has announced a major new public consultation to work out whether the laws surrounding the making and sharing of non-consensual intimate images are sufficient to keep pace with new technology.

Justice Minister Paul Maynard and Digital Secretary Jeremy Wright made a joint announcement in which they said they have asked the Law Commission to examine whether current legislation is fit to tackle new and evolving types of abusive and offensive communications, including image-based abuse, amid concerns it has become easier to create and distribute sexual images of people online without their permission.

The review will consider a range of disturbing digital trends such as ‘cyber-flashing’ – when people receive unsolicited sexual images of someone over the phone – and ‘deepfake’ pornography – the degrading practice of superimposing an individual’s face onto pornographic photos or videos without consent.

The move builds on government action in recent years to better protect victims and bring more offenders to justice, including making ‘upskirting’ and ‘revenge porn’ specific criminal offences.

The review will also consider the case for granting automatic anonymity to revenge porn victims, so they cannot be named publicly, as is the case for victims of sexual offences.

It’s likely that some laws already on the statute book, such as the Sexual Offences Act 2003, could be used to prosecute this sort of behaviour using the “voyeurism” provisions in that Act which criminalise certain non-consensual photography taken for sexual gratification. The maximum punishment is two years imprisonment.

Disclosing private sexual photographs and films without consent and with intent to cause distress (behaviour often known as posting ‘revenge pornography’) was made a criminal offence under section 33 of the Criminal Justice and Courts Act 2015.

However, even such recent legislation was written before some of these practices became both so prevalent and so easy to undertake by even those with little technological expertise.

In addition to the expert review by the Law Commission, there will be a public consultation which will seek views from victims, the law enforcement community, academics and anyone else with an interest in the issue.

This review is part of joint work between the Ministry of Justice and Department for Digital Culture, Media and Sport to consider reform of communications offences, examining the glorification of violent crime and the encouragement of self-harm online, and whether co-ordinated harassment by groups of people online could be more effectively addressed by the criminal law.

The Law Commission review will start on the first of next month and take place over the next two years. It will consider the meaning of broad terms such as “private” and “sexual” in the context of the taking and sharing of images without consent. The government has made it clear that it does not expect the Commission to look into the issue of making and sharing indecent images of children as laws in this area are already considered robust, extensive and tried and tested in the criminal courts.

The end result may well be that different provisions currently embedded in a range of different laws in somewhat patchwork fashion are superseded by a dedicated new Act of Parliament which specifically addresses the legal issues of sharing non-consensual sexual images, providing clearer protection for victims and a much more effective deterrent for perpetrators.