13 June 2018
Politicians go on the (ex-)offensive over criminalising ‘revenge porn' A battle is raging in the UK about whether or not to follow several US states in criminalising ‘revenge porn'. This is — worryingly — a growing phenomenon where aggrieved former partners post explicit images of their exes, taken during happier times, online without their consent. Women's Aid and the UK Safer Internet Centre both support criminalising the practice, while Lord Marks and Baroness Grender proposed the introduction of a one year prison term for offenders. However, critics question whether the sledgehammer of the criminal law is required and whether any new legislation would cover explicit ‘selfies' (i.e. pictures the subject takes of themselves but then provides to others) which are estimated to make up 50-80% of images uploaded by revenge pornistas. Your rights to privacy There are civil law options currently available to those who find themselves over-exposed online. The law protects information in respect of which we have a reasonable expectation of privacy and any publication (be that electronic or hard copy) of this information without justification is likely to constitute an infringement of our right to respect for our privacy. Historically the Courts have placed special emphasis on private information recorded in photographs, which Lord Nicholls described as ‘worth thousand words' in the landmark Campbell v MGN Limited case in 2004. Key factors in assessing whether a party has a reasonable expectation of privacy include:
- The subject matter of the photograph and, importantly, what was taking place (for example, a private act);
- Who it concerned (for example, minors / vulnerable people);
- When and how the image was taken (for example, surreptitiously, by long lens, without consent).