Revenge Porn Is Already Illegal in the UK

It seems self-evident that revenge porn should be a criminal offence: It's offensive, harmful, and motivated by nothing more than, well, revenge. Yet when you consider how to actually criminalise the act, things get trickier. It's all about context.

The UK's Crown Prosecution Service (CPS) has offered new guidance on how to prosecute revenge porn without introducing any new laws. The guidance refers to existing laws and is part of the CPS's broader legal guidance on offences "involving communications sent via social media."

The kinds of laws that the CPS suggests revenge porn could be prosecuted under include the Malicious Communications Act, the Communications Act, and potentially even sexual offences or child protection laws in the most severe cases—which NBC reported could result in a 14-year sentence. The announcement follows hints from UK Justice Secretary Chris Grayling that action on revenge porn would be taken in autumn.

What's most notable is that the CPS recognises the need to consider the context surrounding the images; it's not going after sexually explicit images in and of themselves (which, in revenge porn cases, are often taken consensually but distributed without consent), nor their publication online per se. It's all about whether the way the images are used could be considered criminal. So, it explains, these offences "would not normally be brought under the Obscene Publications Act."

This is an important distinction in prosecuting revenge porn, and it's one that's resulted in problems with new laws in the US in particular. Suggesting a ban of certain images obviously presents a potential clash with the First Amendment in the US, and there are other clear pitfalls of over-ambitious laws.

Last month, for instance, the American Civil Liberties Union (ACLU) pointed out a big flaw in an Arizona law intended to address revenge porn. The law made it a crime in the state to display a nude photo of someone without them consenting to the disclosure—which was so broad-reaching that critics argued baby bathtub photos could get caught in the net.

The UK's guidelines instead emphasise that revenge porn can in fact already be illegal; it's just a matter of recognising how it fits in with existing laws, some of which were written before the country was online.

In its guidance, the CPS describes revenge porn as "where sexually explicit media is publicly shared online without the consent of the pictured individual, usually following the breakdown of an intimate relationship," and reiterates the importance of context, context, context.

"The issue in social media cases will be whether the message or communication is grossly offensive, indecent, obscene or false, not whether the image itself is indecent or obscene," it states. That means that even if an image might not be considered obscene in and of itself, it could still result in prosecution. It's basically a matter of intent.

The guidance also suggests how repeat offences including revenge porn could result in prosecution under harassment laws, and outlines how the Sexual Offences Act could be considered in the most serious cases, "where intimate images are used to coerce victims into further sexual activity, or in an effort to do so."

But while the new guidelines seem to avoid the problem of over-reach we've seen in comparable attempts to prosecute revenge porn in the US, they may risk falling foul in the other direction—by failing to offer enough recourse for victims and prosecutors. Labour MP Geraint Davies told Cosmo that the guidelines weren't enough, calling instead for new laws geared expressly towards revenge porn. He has proposed a bill to that effect.

After all, the guidelines do not constitute any new measures to tackle the issue, and so it can only be hoped that they'll encourage prosecutors to take more perpetrators to task and perhaps act as a deterrent. While intent is, for the reasons explored above, pretty central to deciding whether something like revenge porn should be prosecutable or not, it also makes it tricky to draw the line.

Precisely when is sharing an image malicious enough to be a criminally malicious communication, or to constitute criminal harassment? Figure out an easy way to make that call, and maybe we'll finally see revenge porn become illegal in a way that's actually enforceable.