Current project status
The current status of this project is: Analysis of responses.
List of project stages:
- Analysis of responses
- 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
We are conducting a review of the existing criminal law as it relates to taking, making and sharing intimate images without consent. We published our consultation paper on 26 February 2021, the consultation ran until 27 May 2021. We are now analysing the responses to the consultation which will inform the development of our final recommendations for reform.
The origins of this project are rooted in our Abusive and Offensive Online Communications Scoping Report which was published in November 2018. The purpose of that Report was to assess the extent to which the current law achieved parity of treatment between online and offline offending. We noted that there was considerable scope for reform and identified compelling arguments for a review of three branches of the law: the non-consensual taking and sharing of intimate images; hate crime; and communications offences.
The Law Commission is conducting a review of the existing criminal law as it relates to taking, making and sharing intimate images without consent. In particular we look at the current range of offences which apply in this area and identify the gaps in the scope of protection currently offered, making provisional proposals in an effort to ensure that the criminal law provides consistent and effective protection against the creation and sharing of intimate images without consent.
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.
The non-consensual taking and sharing of intimate images can have a significant and long-lasting impact on victims. The harms they experience are serious and significant. These can include psychological harm such as anxiety, depression and post-traumatic stress disorder (PTSD), worsening physical health and financial harm either through time off work or through withdrawing from online spaces which reduces access to networking opportunities. In some cases, there have been reports of attempted suicide and self-harm.
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 limitations and gaps in the current law include:
- Inconsistency over what type of intimate images are covered. For example, upskirting is currently a criminal offence but downblousing is not. Sharing an altered image – usually involving adding someone’s head to a pornographic image is also not covered.
- Not all motivations for non-consensually taking or sharing an image are covered by current laws. Whilst motivations such as sexual gratification and causing distress are covered (although not consistently), other motivations such as sharing the images as a joke or to coerce an individual are not covered at all.
- Threats to share are not adequately covered, especially when a threat was made to humiliate, coerce, control or distress an individual.
Terms of reference
Our terms of reference were agreed as follows:
- to review 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.
- 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 and section 67 of the Sexual Offences Act 2003.
- 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 issues remain outside the scope of our review:
- The review will not make recommendations about the existing law on the creation and dissemination of indecent images of children.
- Government is conducting active policy work on “platform liability”. This review will therefore remain focused on the liability of individual offenders.
- The Commission is undertaking a separate but related project reviewing the application of and potential reform to the communications offences under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003, which will run concurrently to this project. Matters relating to this review remain out of scope.
Additionally, despite the images being in some sense intimate, this review does not consider the issue of “cyberflashing”, the most well-known form of which is the sending of a picture of the sender’s penis via Bluetooth to a stranger’s mobile phone. We are conducting a second project on reform of the communications offences in parallel to this review. Our Harmful Online Communications consultation paper follows the Scoping Report published in November 2018. In that consultation paper, we have considered and made provisional proposals regarding the issue of cyberflashing. We have provisionally proposed that section 66 of the Sexual Offences Act 2003 should be amended to include explicitly the sending of images or video recordings of one’s genitals.
In our consultation paper published on 26 February 2021, we make a number of proposals for reform aimed at ensuring better protection for victims and a more structured legal framework
Our provisional proposals include:
Four new offences
- A “base” offence which prohibits the taking or sharing of an intimate image of a depicted person where they do not consent and there is no reasonable belief in consent by the perpetrator.
- Two more serious offences:
- Taking or sharing an intimate image without the consent of the depicted person, with the intention to humiliate, alarm or distress the victim.
- Taking or sharing an intimate image, without the consent of the depicted person and the perpetrator having no reasonable belief in consent, for the purpose of either their own or someone else’s sexual gratification.
- An offence of threatening to share an intimate image where the threat is either intended to cause the depicted person to fear that the image will be shared or the perpetrator is reckless as to whether the depicted person will fear the threat will be carried out.
Victim anonymity and protections
Victims of the new intimate image abuse offences would have lifetime anonymity as well as automatic eligibility for special measures (such as giving evidence via a live link or behind a screen at trial).
On conviction, where a sufficiently serious offence has been committed for the purpose of sexual gratification, a sentencing court would be required to add the offender to the ‘sex offenders’ register’.
Sexual Harm Prevention Orders would also be available in appropriate cases where the courts consider it necessary to protect the public or particular members of the public from sexual harm.
Scope of intimate images
In addition to the existing behaviours which are currently criminalised, namely the disclosure of private sexual images, upskirting and voyeurism, our proposals would include the following forms of intimate image abuse:
- Sharing an altered image – including sexualised photoshopping and deepfake pornography.
- Downblousing – taking an image, usually from above, down a female’s top.
- Sharing an intimate image of the depicted person with the depicted person.
- Recording or streaming rapes or sexual assaults.
- Sextortion – threatening to share an intimate image to extort the victim for money or more images (or both).
Our proposals also include a defence of reasonable excuse which would cover taking or sharing an image if:
- the defendant reasonably believed it was necessary for the purposes of preventing, detecting, investigating or prosecuting crime, for legal proceedings or for the administration of justice.
- they were taking or sharing for a genuine medical, scientific or educational purpose.
- taking or sharing an image was in the public interest.
We are now analysing the responses to our consultation, which will inform the development of our final recommendations for reform. We are aiming to publish the final report by Spring 2022.
Contacting the Law Commission
Contact us here: firstname.lastname@example.org.
Area of law
Professor Penney Lewis