After my rather provocatively entitled opinion piece “Marital eroticism on marital breakdown” dealing with what happens on separation to the intimate photos and videos taken voluntarily during the marriage, sometimes known as ‘revenge porn’, Rhys Taylor publicly invited me to consider the position for cohabitants. Happy to do so. This is a preliminary opinion. I'm extremely grateful to my iFLG colleague, Anna Simmonds, for her help
In fact I think the position for cohabitants and marrieds is mostly the same. Probably the major difference is that on divorce a final financial settlement can cover many aspects including loss and financial hardship arising from subsequent production of compromising pictures. This wouldn’t be available under cohabitation claims though TOLATA. But otherwise the situation is probably similar.
There is currently no specific law relating to the problem of ‘revenge porn’. However changes to the law are currently being mooted to address this lacuna. Chris Grayling, the Justice Secretary, has said that the government is open to changing the law to tackle this ‘growing problem’ and Lib Dem Peers Lord Marks and Baroness Grender have proposed that new clauses making the publication of sexually explicit images without permission a criminal offence punishable by up to one year in prison are inserted into the Criminal Courts and Justice Bill. The Bill is currently passing through the Lords.
There are a number of existing remedies under criminal law that might assist dependent on the facts of the case:
- Section 127 of the Communications Act (i.e. sending by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.)
- Section 1 of the Malicious Communications Act 1988 (i.e. sending a grossly offensive or threatening electronic communication with the intention of causing the recipient, or someone to whom the nature of the message is to be communicated, to suffer distress of anxiety)
- Section 2 of the Protection from Harassment Act 1997 (i.e. a course of conduct which amounts to harassment of the other, which the defendant knows/ought to know amounts to harassment. Harassment is not defined but includes conduct causing alarm or distress. Uploading of more than one photo could possibly amount to a course of conduct under this Act)
- Section 67 of the Sexual Offences Act 2003 (i.e. if the photo was taken without permission then this could potentially amount to the offence of voyeurism)
- Section 21 of the Theft Act 1968 (i.e. if the photo is used to blackmail the other person)
Otherwise a civil claim could be pursued seeking an injunction for breach of confidence or privacy or perhaps even a copyright infringement claim. (Any information obtained by hacking would of course also potentially amount to a criminal offence under the Misuse of Computer Act 1990 in England and Wales).
Another option is to contact the website/ISP requesting that they take any image down. It may also be possible to seek a Norwich Pharmacal order against a third party to find the source of the photos.
Civil remedies are however unlikely to be a realistic recourse for a normal individual due to the expense and potential enforcement difficulties involved (particularly for any articles published on websites based overseas). In addition to the cost and enforcement issues, these remedies are all closing the stable door after the horse has bolted and publication has occurred.
The law must therefore be amended to ensure adequate protection for any individuals facing the publication by an ex of intimate photos taken in happier times.