18/03/24

Sharing Intimate Photos or Film | Online Safety Offences

Sharing Intimate Photos or Film | Online Safety Offences
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The taking and sharing intimate photos or film without consent can inflict serious distress and anxiety upon victims. Mobile phones and other electronic devices have amplified the risk of abuse through the non-consensual sharing of such content, increasing the potential harm experienced by individuals.

The Online Safety Act 2023 (‘the Act’) contains a wide range of measures intended to improve online safety in the UK. The Act also introduces, through the insertion of Section 66B into the Sexual Offences Act 2003, four new offences involving ‘Sharing or threatening to share intimate photograph s or film’.

The inclusion of Section 66B enhances enforcement of the law to the extent that, amongst other things, when pursuing a conviction, the Prosecution is not required to prove that the accused intended to cause distress, which was a requirement when pursuing a prosecution for the former offence of ‘Revenge Porn’.

Helen Holder explains the nature of these offences.

The New Offences

Of the four new offences:

  • three, created by section 66B (1), (2) and (3), relate to intentionally sharing a photograph or film of another person in an intimate state without their consent, and
  • the fourth offence, created by section 66B (4), involves the threat to share a photograph or film which shows, or appears to show another person in an intimate state.

Section 66B (1) offence:

The offence is committed if:

the accused intentionally shares a photograph or film which shows, or appears to show, another person in an intimate state,

  • the other person does not consent to the photograph or film being shared,
  • the accused does not reasonably believe that the other person consented.

Section 66B (2) offence:

The offence is committed if:

  • the accused intentionally shares a photograph or film which shows, or appears to show, another person in an intimate state,
  • the accused intended to cause the other person alarm, distress, or humiliation.
  • the other person does not consent to the sharing of the photograph or film.

Note: It will be seen that this is the only new offence where intent to cause distress or humiliation is required to be proven (as was the position with ‘Revenge Porn’ prosecutions).

Section 66B (3) offence:

The offence is committed if:

  • the accused intentionally shares a photograph or film which shows, or appears to show, another person in an intimate state,
  • the accused does so for the purpose of obtaining personal sexual gratification or for somebody else,
  • the other person does not consent to the photograph or film being shared,
  • the accused does not reasonably believe that the other person consents.

Section 66B (4) offence:

The offence is committed if:

  • the accused threatens to share a photograph or film which shows, or appears to show, the other person in an intimate state; and
  • either:
    • does so with the intention of causing the other person or person known to them to fear that the threat will be carried out, or
    • being reckless as to whether either of them will fear that the threat will be carried out.

The offence only requires there to be a threat to share an intimate photograph or film; it will not be necessary for the Prosecution to show that the photograph or film actually exists.

Potential Defences for Sharing Intimate Photos or Film

Section 66C of the Act provides that an offence is not committed under section 66B (1), (2) or (3) if:

  • the photograph or film was taken in a place to which the public or a section of the public had or were permitted to have access (whether on payment or otherwise),
  • the other party had no reasonable expectation of privacy from the photograph or film being taken,
  • the other person was voluntarily in the intimate state, or the accused reasonably believed that to be the case,
  • the photograph or film had been previously publicly shared, and the other person had consented, or the accused reasonably thought that to be the case.

In respect of a Section 66B (1) offence only, it is a defence for the accused to show a reasonable excuse for sharing the photograph or film.

Sentencing Upon Conviction

An offence under Section 66B (1) can only be heard in a Magistrates’ Court where, if convicted, an offender may receive a fine, imprisonment for a term not exceeding the maximum term for summary offences or both.

The three remaining offences are ‘either way’ offences and can be heard before either the
Magistrates’ Court or the Crown Court. Upon conviction an offender faces, before:

  • a Magistrates’ Court: a fine, imprisonment for a term not exceeding the general limit in a Magistrates’ Court or both.
  • a Crown Court: imprisonment for a term not exceeding two years.

How Can We Help?

The new offences, as outlined above, ‘cast a wider net’ than previous legislation and increase the likelihood of the Prosecution obtaining a successful conviction.

However, each case depends upon its discrete circumstances and the Team at KANGS is recognised for the detailed consideration and preparation provided for the defence case on behalf of every client.

If you are accused of any alleged criminal conduct or sexual offence including one of the above offences, our Team is here to assist and would be delighted to hear from you, simply call, or email us using the information below:

Email: info@kangssolicitors.co.uk
Telephone: 0330 370 4333

We provide an initial no obligation consultation from our offices in London, Birmingham, and Manchester. Alternatively, we provide initial consultations by telephone or video.

Hamraj Kang

Hamraj Kang
Senior Partner

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Helen Holder

Helen Holder
Partner

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Sukhdip Randhawa

Sukhdip Randhawa
Legal Director

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