New law on 'revenge porn' is 'unlikely' to tackle hackers distributing intimate images

Intimate images of 25 women from a small area of Scotland were posted online after their computers were hacked, Police Scotland told the Justice Committee yesterday. However, the case is unlikely to be covered by the proposed new law on ‘revenge porn’, according to two legal experts.

Women suffer ‘devastating’ consequences from the disclosure of intimate images distributed by hackers.This was the terrible case revealed by Det Ch Supt Lesley Boal in her evidence to the Justice Committee of the Scottish Parliament earlier this week.

The committee was hearing evidence on the Abusive Behaviour and Sexual Harm Bill which includes a proposal for a new criminal offence of ‘disclosing an intimate photograph or film without consent’.

However, while all of us in the committee room that morning were concerned to hear about this worrying situation, the Bill as currently drafted is unlikely to cover this sort of case.

This is because the current proposal requires proof of an intention by the perpetrator to cause fear, alarm or distress in the victim (or being reckless to such harm). Hackers don’t generally aim to cause specific victims distress or fear: they are generally motivated by money or notoriety.

And hackers are not the only ones who are driven by desires other than causing distress. Perpetrators share images ‘for a laugh’, for sexual gratification, and many have no intention of their victims ever finding out about the images being taken and/or distributed.

This case, therefore, provides a classic example of why we must focus on the harms to victims and not the motives of perpetrators. The harms which victims suffer from image-based sexual abuse – a far more accurate term than ‘revenge porn’ – occur regardless of the motives of the perpetrators.

These harms are serious and while they include abuse, harassment and coercion, they also extend to fundamental breaches of women’s rights – and it is mainly women who are victims – to privacy, dignity and sexual autonomy.

It is women’s rights that should be upheld and respected by a law that recognises their harms and challenges the activities – from whatever motives – that cause those harms.

Another example of this myopia is that the offence as currently drafted won’t cover the distribution of ‘upskirting’ images; or the particular Scottish example of ‘upkilting’. Upskirting is the worryingly common practice of taking images up women’s skirts, with the images generally traded on specially designed websites.

While Scotland took the progressive step of prohibiting the actual creation of upskirting images in 2010, the proposed new offence does not clearly cover their distribution. This is because the drafters of the Bill have been too concerned about the sharing of images of naked ramblers or streakers, not considering women’s experiences of image-based sexual abuse, in all its forms.

The Bill can easily remedy these problems, as set out in our evidence to the committee. It can be revised to provide that the offence is committed where there is an intention to distribute intimate images without consent, as the US state of Illinois does. It can cover upskirting by changing the current draft to simply exclude voluntary exposure – therefore excluding naked ramblers and streakers.

Ultimately, though, what is needed is a law which focuses on the experiences of victims, not the motives of perpetrators. Image-based sexual abuse is a broad phenomenon covering upskirting, downblousing, voyeurism, distribution of hacked images and of sexual assaults, as well as the well-known example of the vengeful ex-partner sharing intimate photos.

The law must cover all these forms of abuse, sending a clear message that it respects women’s fundamental rights to privacy, dignity and sexual autonomy.

Clare McGlynn is a Professor of Law at Durham Law School who gave evidence before the Justice Committee yesterday and Erika Rackley​ is a Professor of Law at the University of Birmingham​