“(3A) It is an offence for a person (A) to disclose an image of another person (B) recorded during the commission of an offence under subsection (2) if the disclosure is made without B’s consent.
(3B) It is a defence for a person (A) charged with an offence under subsection (3A) to prove—
(a) that disclosure of the image was necessary for the purposes of preventing or detecting crime, or
(b) that A did not disclose the image with the intent of disclosing an image of another person’s genitals, buttocks or underwear
Again, amendment 4 was tabled by the right hon. Member for Basingstoke and is supported by Members from every party. It seeks to ensure that the sharing or distribution of upskirting images taken without the complainant’s consent is a criminal offence.
As we all know, the Bill is modelled on the equivalent Scottish legislation, which had to be supplemented, relatively soon after its introduction, by additional legislation to stop the distribution of images. That was necessary to make the original legislation effective. It therefore does not logically follow that the Government will bring forward part of what is necessary—measures to prevent sharing—to address this issue effectively.
As the right hon. Lady pointed out in evidence to the Committee, current legislation might stop the distribution of upskirting images, but only in cases where such images would cause distress. As we have already discussed, sharing an image on a group chat for the purpose of banter is not necessarily intended to cause distress, so it may well not be covered. The amendment would close that clear loophole.
Another potential loophole was raised by the Director of Public Prosecutions, who noted in her submission to the Committee that
“the Bill does not criminalise a person who is in possession of images which have been recorded” without the consent of another person or people
“but where it cannot be shown that” that individual was responsible for recording the images. For example, someone might have hundreds of such photographs on their computer or digital device or devices, but there might be no forensic evidence to reveal how they came to be taken. It should also be noted that there is no power of forfeiture over such images, so someone may have a really quite unpleasant collection but, unless those other pieces were in place, there would be nothing we could do about it. It could be claimed as a collection—a collection of women being distressed. We have not addressed that.
I also draw the Committee’s attention to the precedent set by existing law in relation to revenge porn. There may be an offence under section 33 of the Criminal Justice and Courts Act 2015 if it can be proved that the sharing of images was done with the direct intention of causing distress to the victim. As we know, that does not cover distribution motivated by finance, entertainment, amusement or indeed sexual gratification. That means that commonplace activities such as sharing among groups of friends are not covered. Once again, rather than acknowledging that distress is implicit in the objectification of women through this deliberately demeaning and humiliating act, we will place the onus on the complainant—the victim—and the prosecution to quantify distress.
Let me say in passing that I welcome the Law Commission’s ongoing review of online abuse. I took part in one of its consultations last night. On the basis of its recommendations, which are relevant to what we are discussing, I understand that the Department for Digital, Culture, Media and Sport intends to bring forward a White Paper on internet safety by the end of 2018. I look forward to the Minister’s response.