As of 31 January 2024, new provisions within the Online Safety Act are in force to tackle intimate image abuse and "revenge porn". Where previously victims had recourse to a patchwork of civil and criminal causes of action, the various offences - including some new offences - have now been consolidated and become more effective tools for victims seeking justice. In particular, the Act creates a new base offence, within the Sexual Offences Act 2003, of sharing intimate images without consent, which removes the need to prove an intention to cause distress, which had been an unnecessary hurdle to clear for victims. It also targets "deepfakes" and introduces a new "cyberflashing" offence. The key changes are outlined below.
Tackling "cyberflashing" and "deepfakes"
- Section 187 of the Online Safety Act introduces for the first time a new offence of "cyberflashing" (to be inserted as Section 66A into the Sexual Offences Act 2003) which criminalises intentionally sending or giving an image (photo or film) of a person's genitals (including your own) to another, intending to cause the recipient alarm, distress or humiliation, or for sexual gratification and being reckless to whether it caused the recipient alarm, distress, or humiliation.
- This offence includes images which have been altered by computer graphics, aimed at tackling "deepfakes", i.e. fake non-consensual intimate or sexually explicit images that have been created using AI/computer software. Such images were not covered by the "revenge porn" offence, Section 33 of the Criminal Justice and Courts Act 2015 and other related offences (now repealed – see below).
New intimate image sharing offences
- Section 188 has created a new base offence of sharing intimate images without consent (to be inserted as Section 66B(1) into the Sexual Offences Act 2003). This criminalises conduct where a person intentionally shares an image of or appearing to show another person in an intimate state, where the person in the image does not consent, and the perpetrator does not reasonably believe that the person in the image consents.
- In addition to the base offence, two further serious offences have been created which carry greater maximum penalties than the base offence: (1) where the perpetrator commits the offence with the intention of causing the person in the image alarm, distress or humiliation; and (2) where the perpetrator obtains sexual gratification (to be inserted as Sections 66B(2) & (3) into the Sexual Offences Act 2003).
- It is also an offence to threaten to share an image of a person in an intimate state where the perpetrator either: (a) intends that the victim or another person who knows the victim will fear that the threat will be carried out; or (b) is reckless as to whether the victim or another person who knows the victim will fear that the threat will be carried out (to be inserted as Section 66B(4)). The Act makes clear that it is not necessary to prove that an image actually exists, or that it shows a person in an intimate state if it does exist.
- These offences are also intended to address activities including "deepfakes" and "downblousing", as noted by CPS guidance.
Repeal of previous "revenge porn" offences
- Section 190 of the Online Safety Act repeals Sections 33-35 of the Criminal Justice and Courts Act 2015 which was the legislation first introduced to tackle "revenge porn" offences. It is important to note that this legislation still applies to conduct that occurred between 13 April 2015 and 30 January 2024.
Anonymity
- By virtue of the new offences being inserted into the Sexual Offences Act 2003, victims of the offences outlined above are entitled to automatic lifelong anonymity (under s2(1)(da) of the Sexual Offences (Amendment) Act 1992). This significantly strengthens protections for victims as this was not the case under previous legislation tackling intimate image and "revenge porn" offences.
Sexual Harm Prevention Orders and Sex Offenders Register
- These new offences fall within the scope of Sexual Harm Prevention Orders, whereby the Courts can place restrictions on a person's behaviour to protect the public from sexual harm. The new offences also attract sexual offender notification requirements (dependent on factors such as the severity of the sentence and age of the perpetrator), whereby certain sexual offenders are placed on the sex offenders register (see Section 191(3) of the Online Safety Act 2023, Section 80 of the Sexual Offences Act 2003 and Schedule 3).
Analysis
As of November 2022, around 1 in 14 adults in England and Wales had experienced a threat to share intimate images, with the police recording over 28,000 reports of disclosing private sexual images without consent between April 2015 and December 2021. The Revenge Porn Helpline reported a three-fold increase in phone calls over 2022, whilst data published by Refuge revealed that the charging rates remained low.
These long overdue reforms aim to reverse that trend, against a backdrop of rapidly evolving technology, particularly the potential for AI to create manipulated images, of which the recent deepfakes of Taylor Swift are only one, high-profile example. The Online Safety Act was designed as a framework statue that could be regularly and easily updated. By using it as a vehicle for change in this area, it is hoped that the law will now, and in future, be more robust in addressing these significant online harms, which disproportionately impact women and girls.
The SPITE Project
The Queen Mary Legal Advice Centre (QMLAC) set up and runs the SPITE project (Sharing and Publishing Images to Embarrass), which provides free legal advice to victims of sexual image-based abuse. Mishcon de Reya are proud to have worked with the QMLAC on this important project since its inception in 2015.
Prior to implementation of the Online Safety Act, Mishcon de Reya and the QMLAC made joint submissions to the Public Bill Committee on the Online Safety Bill on behalf of victims of sexual image-based abuse. Mishcon de Reya also made recommendations to the Law Commission to strengthen the law in this area to protect victims.
Mishcon de Reya's specialist team of lawyers advise clients that have been victims of digital/online abuse and harassment, as well as publishers and platforms on their complex obligations in moderating online content.