Taking, making and sharing intimate images without consent

Current project status

  • Initiation: Could include discussing scope and terms of reference with lead Government Department
  • Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
  • Consultation: Likely to include consultation events and paper, making provisional proposals for comment
  • Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
  • Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

Reviewing the law as it applies to taking, making and sharing intimate images without consent and proposing recommendations for reform if necessary. This project is now underway.

Our earlier work on Abusive and Offensive Online Communications can be found here.

Contact us here: online-comms@lawcommission.gov.uk

The problem

The increased use of smartphones and online platforms has made it easier to take photographs or film, alter or create images and send images to our family and friends or the public at large. However, this also means that it is now easier to take or make images of others or to distribute images of others without their consent (whether the images were taken consensually or non-consensually in the first place). This is particularly concerning when those images are “intimate” in nature, such as where the person is naked, engaging in a sexual act or when the image is taken up a person’s skirt or down a female’s blouse.

Currently, there is no single criminal offence in England and Wales that governs the taking, making and sharing of intimate images without consent. Instead, we have a patchwork of offences that have developed over time, most of which existed before the rise of the internet and use of smartphones. Each offence has different definitions and fault requirements, and there are some behaviours that are left unaddressed.

The project

In November 2018 we published our Scoping Report on Abusive and Offensive Online Communications. That Report reviewed the existing criminal law as it related to online abuse, and considered the disclosure of private sexual images without consent. We concluded there was scope for further review and reform of the law to take into account the specific nature of online offending. In particular, we recommended that “the criminal law’s response to online privacy abuse should be reviewed, considering in particular whether the harm facilitated by emerging technology such as ‘deepfake’ pornography is adequately dealt with by the criminal law.”

In the House of Commons’ consideration of the Voyeurism (Offences) (No 2) Bill in September 2018, the Parliamentary Under-Secretary of State of Justice Lucy Frazer QC MP announced that:

following the completion of this first phase [of reviewing the criminal law in relation to abusive and offensive online communication], the Ministry of Justice, working with DCMS, will ask the Law Commission to take forward a more detailed review of the law around the taking and sharing of non-consensual intimate images. This will build on the Law Commission’s review of online abuse and allow the Government to consider how to address this issue more widely, rather than just for upskirting images … it is not appropriate to legislate in a piecemeal way.

The Law Commission is now conducting a review of the existing criminal law as it relates to taking, making and sharing intimate images without consent and, if necessary, will provide recommendations for reform. This will include a review of:

  • section 33 of the Criminal Justice and Courts Act 2015, otherwise known as the “revenge pornography” offence;
  • voyeurism offences under section 67 of the Sexual Offences Act 2003, including the potential implications of the Voyeurism (Offences) Act 2019;
  • exposure under section 66 of the Sexual Offences Act 2003; and
  • the common law offence of outraging public decency.

We will look at a range of offending behaviour including “upskirting” and “downblousing” and the sending of those images to another without consent, “cyberflashing”, altering and creating intimate images such as “deepfake pornography”, and threats to disclose intimate images without consent. We will consider whether the existing criminal law protects victims effectively from behaviours that should be criminalised and, if not, propose means of reform.

A separate but related project will consider reform of the communications offences including group harassment online and the glorification of violent crime and self-harm. For more information about that project, please click here.

The terms of reference for the review

Includes:

  • Reviewing the current range of offences which apply in this area, identifying gaps in the scope of the protection currently offered, and making recommendations to ensure that the criminal law provides consistent and effective protection against the creation and sharing of intimate images without consent.

In particular:

  • To consider the existing criminal law in respect of the non-consensual taking of intimate images, and the non-consensual sharing of intimate images, and to assess whether it is capable of dealing adequately with these behaviours.
  • To consider the meaning of terms such as “private” and “sexual” in the context of the taking and sharing of images without consent, with reference to existing legislation, including (but not limited to) section 33 of the Criminal Justice and Courts Act 2015, section 67 of the Sexual Offences Act 2003 and possession of extreme pornographic images under sections 63 to 67 of the Criminal Justice and Immigration Act 2008.
  • To consider the potential impact of emerging technology which allows realistic intimate or sexual images to be created or combined with existing images and how the creation and dissemination of such images is dealt with under existing criminal law.
  • To ensure that any recommendations comply with, and are conceptually informed by, human rights obligations, including under Article 10 (freedom of expression) of the European Convention on Human Rights.

The following topics are out of scope of the report:

  • the law relating specifically to indecent images of children (for example, under section 1 of the Protection of Children Act 1978);
  • platform liability; and
  • detailed review and reform of the communications offences under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003, which will be considered at length in our related project on the communications offences.

Contacting the Law Commission

If you would like to be kept up to date with this project’s stakeholder events and consultation, please contact the Law Commission on imageabuse@lawcommission.gov.uk and we will add you to our mailing list.

We would also welcome the opportunity to meet you or the organisation you represent. Please get in touch and we will respond to your email as soon as possible.

Project details

Area of law

Criminal law

Commissioner

Professor David Ormerod QC