back to article 'Revenge porn' law to arrive in spring – MoJ

Revenge porn scumbags need to be aware they will soon face up to two years in prison under legislation set to come into force in the spring, the Ministry of Justice said Tuesday. Under an amendment to the Criminal Justice and Courts Bill, it will become a specific offence to share explicit images without an individuals' …

  1. ElectricFox
    Childcatcher

    reasonable person?

    "This will include anything a "reasonable person" would consider to be sexual, "so this could be a picture of someone who is engaged in sexual behaviour or posing in a sexually provocative way"

    This is so open to abuse. As an extreme example, if you were to upload a picture of a woman without her "headscarf", there are a number of ethnic minorities that would consider that sexual.

    I'm sure that this can be dealt with using existing laws, no?

    1. Rikkeh

      Re: reasonable person?

      Lots of laws are based on what a "reasonable person" would consider to be something. It's a "least bad option" for situations such as this one where you don't want to come up with an exhaustive list of poses, clothing and body parts (and indeed, to do so would create ridiculous situatons).

      Your "reasonable people" in this case are the members of a jury (given that the sentence is in excess of 6 months, this would be at least an "either way" offence, where either prosecution or defence can elect to go for a crown court trial).

      I've never encountered, nor have I ever heard of a jury made up entirely of non-Anglo saxons (although, of course, given that they make up the majority of people in the UK, you can get all Anglo saxon juries).

      Your implication that your "reasonable person" could be a religious conservative from an ethnic minority who would consider an uncovered head to be beyond the pale therefore seems misplaced.

      1. SolidSquid

        Re: reasonable person?

        Wasn't there a guy in court not to long ago because he was selling porn he made himself but which was considered "extreme" under this standard? He was found innocent of any crime, but while the jury gives safeguards against prison, it doesn't stop someone having to go through the expense and stress of being dragged into court because a police officer took offence

      2. msknight Silver badge

        Re: reasonable person?

        "Your implication that your "reasonable person" could be a religious conservative from an ethnic minority who would consider an uncovered head to be beyond the pale therefore seems misplaced."

        - I hope to hell that Fox News doesn't read this...

        1. Andus McCoatover
          Windows

          Re: reasonable person?

          Or indeed, Michelle Obama...

      3. Anonymous Coward
        Anonymous Coward

        Re: reasonable person?

        "Your implication that your "reasonable person" could be a religious conservative from an ethnic minority who would consider an uncovered head to be beyond the pale therefore seems misplaced."

        Wouldn't that depend entirely on where in England the case took place. I believe there a cities where the "ethnic minorities" are only minorities when compared to the entire country but locally represent a very large part of the society. Therefore it is entirely possible, and not misplaced, to have a jury made up from 12 people who consider not wearing a headscarf a crime.

        1. Rikkeh

          Re: reasonable person?

          @AC

          >>"Wouldn't that depend entirely on where in England the case took place. I believe there a cities where the "ethnic minorities" are only minorities when compared to the entire country but locally represent a very large part of the society. "

          Yes, of course. However, the local areas you're referring to where a minority is in a majority are much smaller than the jury catchment areas for a particular Court. See FOI request: https://www.whatdotheyknow.com/request/crown_court_juror_catchment_area, which shows that the jury catchment areas for each court are gigantic and take up several postcodes.

          Add to that the fact that in order to serve on a jury you need to be both registered to vote and resident for UK for at least five years- both of these things further dilute any influence that a majority-minority area might have on jury selection.

          The odds of finding your 12 religious conservatives on a jury appear to be so small as to be not worth worrying about. Of course, that's not going to stop the Express etc from worrying about it, it just stops the worrying from having a rational basis in the absence of any compelling evidence to the contrary.

        2. I don't have a handle

          Re: reasonable person?

          Wouldn't that depend entirely on where in England the case took place. I believe there a cities where the "ethnic minorities" are only minorities when compared to the entire country but locally represent a very large part of the society. Therefore it is entirely possible, and not misplaced, to have a jury made up from 12 people who consider not wearing a headscarf a crime.

          Even if the jury were made up of 12 such individuals, it would not make any difference.

          A 'reasonable person' (aka 'the man on the Clapham omnibus') is not a juror, but rather a legal fiction used by the court as an objective test. This legal fiction, in essence, represents your average citizen and not the jury. Therefore, even with such a jury, it would be a non-issue in a UK court of law.

          Quick example, different area of law, but the principle still holds: http://www.lawteacher.net/lecture-notes/tort-law/negligence-breach-lecture.php

          1. Anonymous Coward
            Anonymous Coward

            Re: reasonable person?

            Many cases of taking offence or declaring something sexual are all in the mind of the beholder. People now fret that their family album contains pictures that might be condemned if officials or the media saw them.

            People now self-censor out of fear - and that affects their perception of other people's pictures too. We are a social animal - rub our noses in something often enough and we learn the lesson of playing safe by paying at least fervent lip service to the "accepted" line.

            However - a jury can often say "not guilty" in a case - where it is "there but for the grace of $deity" that colours their decision.

    2. Mark 85 Silver badge

      Re: reasonable person?

      There is indeed a slippery slope to this. Your example is only one. Yes, the minorities may not be a factor this week, this year. But what in 5 years? There's too much room for interpretation I think. The intent is good but the implementation leaves a lot to be desired. It just seems too broad a definition that can and will cover more than what is intended.

      If something along this line were implemented in the States, I can see some folks being hauled across country from say, LA to Mississippi even without the "revenge" part being considered.

      The big question in my mind is that if the offense is already covered and being prosecuted under other laws, then why create a new law that's open to abuse? Purely knee-jerk in an election year maybe?

    3. Graham Marsden
      Thumb Down

      Re: reasonable person?

      The problem with the "reasonable person" test is that those who are passing these laws very likely consider themselves to be the archetypal Reasonable Person, therefore it's obvious what is and isn't criminalised according to their law.

      Unfortunately they don't seem to realise that not everyone else thinks exactly the same way as them, so many of us are left worrying that we're not "reasonable" according to their lights and thus are forced to self-censor just in case we might fall foul of another ill-defined and poorly thought out law.

      Of course keeping the people scared and confused tends to benefit those in power...

    4. the spectacularly refined chap

      Re: reasonable person?

      This is so open to abuse. As an extreme example, if you were to upload a picture of a woman without her "headscarf", there are a number of ethnic minorities that would consider that sexual.

      As has already been noted I think that's stretching things a little. Juries are expected to weigh things like this according to their understanding of the broader community's values rather than their own insular views.

      The problem I see is at the other end of the debatable spectrum. Take it as read the photos under consideration are of full frontal nudity. Are they covered? It's easy to give a knee-jerk answer of "yes" without considering the context or that nudity does not by itself imply sexuality.

      What if this is a photo taken for medical purposes? An artistic nude? Holiday snaps on a nudist beach? None of these are overtly sexual in nature so my personal interpretation would be "no". However I can see many people would exempt the medical photos but include the others or indeed include all three sets of photos. The balance of people holding each of those interpretations is difficult to forecast in advance and will vary between juries, so you will not get a consistent interpretation of what constitutes sexual material.

      1. gnasher729 Silver badge

        Re: reasonable person?

        "What if this is a photo taken for medical purposes? An artistic nude? Holiday snaps on a nudist beach? None of these are overtly sexual in nature so my personal interpretation would be "no". "

        What you are missing is that the context is revenge porn. I don't mind being seen naked on a nudist beach by 100 other nudists, but a peeping Tom behind a tree will get his head banged. So if that holiday snap from a nudist beach gets distributed, its context has changed. The people seeing it are not nudists anymore, but perverts. The same photo is fine in your photo album, and criminal when you send it to strangers.

      2. big_D Silver badge

        Re: reasonable person?

        @ the spectacularly refined chap

        What if this is a photo taken for medical purposes? An artistic nude? Holiday snaps on a nudist beach? None of these are overtly sexual in nature so my personal interpretation would be "no".

        medical photos? 100% prosecution candidate, what the f' are they doing online? That is very simple, unless the subject of the photo published them himself/herself. This would, however, fall under medical ethics and should result in the doctor who released the photo being struck off - unless it was released by the patient for publishing as part of a medical paper.

        Artistic nude, holiday snaps, here you have to get the permission of the subject before you can publish. You might own the copyright to the image, but without a waiver, you can't publish it willy-nilly.

    5. big_D Silver badge

      Re: reasonable person?

      Don't forget, the CPS must parse the case on the "reasonable person" test, before they submit it to court for prosecution.

    6. Anonymous Coward
      Anonymous Coward

      Re: reasonable person?

      The "reasonable person" test is already part of the Obscene Publications Act. And that is never used to impose stricter restrictions than society thinks on average to be reasonable.

      As an example of how Mr/Ms Plod attempts to bend the law tighter than ever intended, have a read of this (be forbearing, he is a lawyer and writes long):

      http://obscenitylawyer.blogspot.co.uk/2014/10/tiger-porn-victim-bites-back.html

      The same author also shows how the legal profession have no interest in making the law clear and unambiguous:

      http://obscenitylawyer.blogspot.co.uk/2013/06/keir-starmers-obscene-solution.html

  2. Khaptain Silver badge

    Blurry Faces, Rubber masks or Nazi uniforms

    What would the law do if the faces were blurred out, a la Google Streetview. How would the defendant prove that he/she were the actuelle victim, especially if they had put on/or lost a bit of weight in between time.

    Or if said partner were to be partaking in some rubber fun, full rubbered/latexed up it would be nigh on impossible to prove who was who..

    Does dressing up in Nazi uniforms with soft rubber whips class itself as a sexual act... ( I won't FORMULAte any suggestion about anyONE).

    The lawyers will probably have a lot of fun with some of these cases. Quick thought, I wonder if a Lawyers darknet exists ?

  3. Chris Miller
    Thumb Up

    Aaah, Coleridge

    Thanks for that, subs.

    1. Anonymous Coward
      Anonymous Coward

      Re: Aaah, Coleridge

      We need plenty of references to junkie poets to raise the tone of El Reg. (And to remind us that the criminalisation of drug addiction is a new phenomenon.)

      However, I missed the bit where Samuel Taylor put up Dorothy Wordsworth's nude selfies on Instantaneous Portrait Republication, a site where submitted pictures were quickly made into woodblocks and the resulting prints distributed by runner to subscribers. Perhaps I haven't studied the Lake Poets enough.

  4. Andus McCoatover
    Windows

    A rise in people?

    Oh, Pleeth!

  5. Anonymous Coward
    Anonymous Coward

    So I presume this only applies to individuals then

    I am all for the concept of ownership of your own image however we are all under camera everyday, so presumably if I decide to dress provactively in public then I can take the local council, police etc to court and win under this pron law? Being in public cannot be seen as giving concent unless you also say that allowing your image to be captured is also proof of consent.

    No, I imagine that instead public nudity or anything risque will also be banned.

    Who are these people wanting to put the law back 100 years, the West is supposed to be a land of tolerance but all I see with this government is just more repression.

    There is nothing offensive about the human body regardless of garb, I say instead of punishing the majority for lack of prudity we put the weirdos who are afraid and unable to contain their sexual disfunction

    1. big_D Silver badge

      Re: So I presume this only applies to individuals then

      But the police aren't likely to publish your public nudity photos on your social media platform of choice to harass you...

      I'll assume that you are a male AC, so your Ex has a photo of you in the nude and publishes it on the internet, saying you are of very small proportions and not good in the sack... So that is fine by you?

      The point here, is if you have given permission for the photo to be published, if you have agreed for the photo to be published, there is no offence committed. If your ex is angry with you and publishes intimate photos of you online, with disparaging comments, without your permission, that is wrong.

      1. Intractable Potsherd

        Re: So I presume this only applies to individuals then

        But it only takes a small step to make *any* photo of an individual posted with a disparaging comment to become illegal. I really don't like the way the law is going on this (and several other areas) - we are receding into a Victorian vision of the world (which isn't so different from an Islamic view) instead of advancing into the future.

  6. Stuart 22

    So what's the point?

    "The Crown Prosecution Service already prosecutes cases around revenge porn using a range of existing laws."

    Couldn't they be spending parliamentary time on something useful? Like staying home, feeding the dog and pretending there is no upcoming election?

  7. Anonymous Coward
    Anonymous Coward

    Why are images special

    Surely any other "data" the sharing of which is calculated to be embarrassing should be covered too if images are.

  8. Anonymous Coward
    Anonymous Coward

    Teenagers

    No doubt it will be used to hammer some teenagers at an age when they are still negotiating the perils of sexual relationships. Today's example from the Telegraph suggests existing laws are being used in a draconian way.

    http://www.telegraph.co.uk/news/uknews/crime/11383910/Boy-becomes-youngest-in-Britain-to-be-convicted-of-revenge-porn-aged-14.html

    1. gnasher729 Silver badge

      Re: Teenagers

      The case you quote is a sixteen year old selling nude photos of his fifteen year old ex-girlfriend for cash. I was surprised that he got away with it so lightly. Nothing draconian about it at all.

      1. Anonymous Coward
        Anonymous Coward

        Re: Teenagers

        While that is the main story in the article it ends with

        One teenage girl received a police caution after sending images of herself to a boy and was told she could end up on the sex offenders’ register.

        So the police are doing the same thing as their colleagues in the US and at least threatening teenagers who send naked pictures of themselves with being prosecuted for producing and distributing child pornography. So if your daughter gets pressured into sending snap ("all the other girls do" or "Oh I always send the guys pictures...") that they might regret in later life they can suddenly find themselves on the sex offenders register. Banned from going to their own kids primary school and the like.

      2. Anonymous Coward
        Anonymous Coward

        Re: Teenagers

        "The case you quote is a sixteen year old selling nude photos of his fifteen year old ex-girlfriend for cash."

        He was 14 - it took two years for the case to be made. Your summary has blown up the offence to tabloid proportions. Yes - he accepted money from a friend for some of the pictures - it did not say he had originally touted them for money. Youngsters often offer each other money to elicit a desired favour. He did not appear to be publishing them online or going into business.

        A 14 year old threw a snowball at me yesterday - and missed. His friends immediately offered me a snowball to "get my own back". I refused - and unbidden the boy apologised for what he recognised as an error of his judgement. I accepted the apology gracefully - and no harm was done. Should I have lectured him - and possibly reported him to the police for an attempted assault?

  9. ZanzibarRastapopulous Silver badge

    Journalism....

    So, Brooks Newmark and Bryant would've been able to sit out their respective photo scandals knowing that the evidence could never be shown to anyone?

  10. Anonymous Coward
    Anonymous Coward

    Consent

    can consent be withdrawn? could be awkward if you upset someone and they suddenly decide that they want to complain about a photo form years before that has been available on social media since it was taken.

    Intent? If a photo is taken in a public place and someone you don't even know complains about their depiction in it then how can it be 'revenge' as surely that implies some level of relationship between the two parties

  11. Anonymous Coward
    Anonymous Coward

    "REVENGE PORN"

    BELLADONNA has done quite a few of those.....phwoar!!

  12. chivo243 Silver badge
    Joke

    Time to upload?

    OK ladies, you know who you are... Now where do I upload them? Glad the ladies don't read El Reg! But guys, seriously, where do upload them? I can be a slow starter with crap like this.

  13. Suricou Raven

    Anyone got the text?

    It's not hard to imagine this going wrong, if sites can be held liable too. Facebook and the like can afford a policing system and the legal muscle to defend themselves - but it could put an end to legal user-submitted porn sites in the UK. Not that it'd really change anything, they'd just host overseas.

  14. Sebastian A

    Vaguely-worded legislation

    seems to be the norm these days. Why bother anticipating edge cases when you can just waffle something together so that it's easier to misuse later?

  15. Malcolm Boura

    The Register, please read the relevant part of the Act and then correct the above article.

    1. Anonymous Coward
      Anonymous Coward

      Reminds me of the Rec54 days - an education in how to read Government draft bills :-)

      Kris

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