Revenge Porn in Lockdown: Should the UK follow the German approach?

The travel restrictions and lockdown orders which have been issues internationally during lockdown have had many detrimental effects, particularly on mental health, and domestic abuse cases. Another form of abuse which has become more prevalent during this period is the bullying tactic known as revenge porn.

This surge in cases has been seen internationally, where in the UK the Revenge Porn Helpline has reported that, “the number of people seeking help for intimate image abuse nearly doubled in the week beginning March 23, when the government imposed its stay-at-home orders, with more cases opened in the following month than any previous four-week period”.[1]

Australia’s eSafety Commissioner also reported an increase during the pandemic period, with reports of anywhere from a 210% to 600% increase in ‘image-based abuse’ cases.[2]

In light of this, it is crucial to consider whether the UK legislation relating to revenge porn is sufficient for protecting the rights of victims, or whether we might be able to learn from the German approach.

The UK Approach

To clarify, revenge porn is the practice of intentionally uploading photos and videos, usually of women, in provocative and intimate situations. There have been many international responses to revenge porn, in the UK this has included imprisonment of up to two years. In Australian courts, the intent behind the upload has been a pivotal factor in determining compensation, and in the case of Wilson v Ferguson they argue that, “The compensation award should take account of the fact that the impact of the disclosure on the plaintiff was aggravated by the fact that the release of the images was an act of retribution by the defendant, and intended to cause harm to the plaintiff”.[3] While in many other countries such as Ireland, there has yet to be any revenge porn offence introduced.

Revenge porn as an offence has highlighted the ultimate downfall of the development of technology law, and that is the relevance and timeliness of legislation. Many traditional crimes have now been transcribed into online formats, and the traditional legislative frameworks in place fail to adequately protect victims.

In the UK, revenge porn is governed under sections 33-35 of the Criminal Justice and Courts Act 2015 (CJCA 2015). The act defines this offence as, “disclosing private sexual photographs and films with intent to cause distress”.

The offence occurs where still or moving images are disclosed:

(a) without the consent of an individual who appears in the photograph; and

(b) with the intention of causing that individual distress.

The penalty on conviction is 2 years in the Crown Court and 6 months in the Magistrates Court.

Although this provides access to a remedy for victims of this offence, the main issue with this approach is that it only provides redress after the images have been shared, meaning that the victim will likely never be able to fully remove the images from the internet.

The German Approach

Germany, rather, has established a preventative measure, which empowers victims to seek a court order preventing the spread of compromising images. Here, the Higher Regional Courts determined that ex-partners can apply to the courts to have any photos of them, which had been taken with or without permission, to be deleted from their partners’ devices, in accordance with German criminal codes. In this approach, the victim is empowered to subsequently withdraw the consent that they may have given when the intimate photos or videos were initially taken.[4]

This would be a strong path of reform for any jurisdiction, as in many instances of cyber harassment and revenge porn, prosecution often occurs once that damage has been done, but the German approach minimises any potential harm. Ex partners are given a right to approach the courts where they fear that an ex could potentially abuse intimate photos or videos of them. In these situations, the couple is required to submit their phones, computers, and electronics to the court, and they are examined for the existence of any offending material, which can then be destroyed, under S.201(a) of “Verletzung des Höchstpersönlichen Lebensbereichs durch Bildaufnahmen”.

To conclude, it is important to recognise that revenge porn is a personal attack, often directed towards young or vulnerable victims. Often, seeking help from police after the revenge porn has occurred is insufficient, as this cannot undo the damage that has been experienced. This can be worsened by the fact that law enforcement can be slow to act in these cases, and have had issues in the past with how they respond to revenge porn claims. Further, aUniversity of Suffolk research found that 95% of police officers who took part in a survey in 2017 had not had any training on revenge porn legislation.[5] Many victims feel a sense of judgement or indifference when lodging such claims with law enforcement, while the pre-emptive approach employed in Germany considers a more objective consent-based approach, which could be beneficial for UK revenge porn victims, as it is ultimately less intensive.

[1]Brit Dawson, ‘Revenge porn is on the rise during lockdown’, (Dazed Digital, 13 May 2020) <https://www.dazeddigital.com/life-culture/article/49211/1/revenge-porn-is-on-the-rise-during-coronavirus-lockdown>

[2]Clint Witchalls, ‘Reports of ‘revenge porn’ skyrocketed during lockdown, we must stop blaming victims for it’, (The Conversation, 3 June 2020) <https://theconversation.com/reports-of-revenge-porn-skyrocketed-during-lockdown-we-must-stop-blaming-victims-for-it-139659>

[3]Wilson v Ferguson [2015] WASC 15.

[4]Philip Oltermann, ‘‘Revenge porn’ victims receive boost from German court ruling’, (The Guardian, 22 May 2014) <https://www.theguardian.com/technology/2014/may/22/revenge-porn-victims-boost-german-court-ruling>

[5]Ben Robinson & Nicola Dowling, ‘Revenge porn laws ‘not working’, says victims group’, (BBC, 19 May 2019) <https://www.bbc.co.uk/news/uk-48309752>