Criminal Justice and Courts Bill

Debate between Baroness Brinton and Lord Marks of Henley-on-Thames

Monday 20th October 2014 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, Amendment 98 stands in my name and in the names of my noble friends Lady Grender, Lady Brinton and Lady Barker. I shall address the entire group of amendments, in particular the amendments tabled by my noble friend Lord Faulks.

Your Lordships may remember that in Committee I and colleagues on these Benches moved an amendment to criminalise the practice of posting so-called “revenge porn” on the internet. This thoroughly nasty behaviour, where the perpetrators post sexual images of former lovers after the breakdown of their relationships in order to hurt their victims, has become all too common. There are a number of sites with names like “MyEx.com” where such images abound.

Unsurprisingly, the publication of such images causes untold distress, embarrassment and humiliation. Such publication has the potential to create havoc with victims’ mental and physical health, their happiness and self-esteem, their future trust in others, their ability to form relationships and their present and future relationships—social, within their families and at work. Publication by a former lover in these circumstances is a gross breach of trust. The images are taken in the privacy and trust of an intimate relationship, with the consent of the victim. They are then deliberately and callously displayed to the world without their consent, in a malicious attempt to cause distress.

The Government’s response to our amendment in Committee was to promise to consider the issues that we raised. I have been delighted by the way that such consideration has led to the tabling of the Government’s amendments in this group. They start with Amendment 103, which would establish the offence of, “Disclosing private sexual photographs and films”, widely defined, “with intent to cause distress”. I am aware that at the early stages of the Government’s consideration there was a view within the Ministry of Justice that no new offence was needed, on the basis that existing offences largely covered the evil with which we were concerned. However, further consideration has led the department to the conclusion that a new offence is indeed needed. That recognition is right and I commend and thank my noble friend, and all those who have worked with him on this within his department, for the extremely hard work that they have undertaken in the short time since Committee to develop these proposals.

The three essential elements of the new offence will be, first, that the image must be,

“a private sexual photograph or film”,

widely defined; secondly, that it must be published “without the consent of” the victim and, thirdly, that “the intention of” the publisher must be to cause the victim “distress”. Those elements largely mirror those of the offence mentioned in our amendment and we are content that the government amendments represent an effective way of dealing with this despicable behaviour.

We have had one concern as to the definition of sexual, which our amendment left undefined. The Government have sought to define it in Amendment 105. Subsection (3)(a) of their proposed new clause is clear, referring precisely to,

“an individual’s exposed genitals or pubic area”.

Paragraphs (b) and (c) of that subsection go wider. They refer to an image being sexual if, in paragraph (b),

“it shows something that a reasonable person would consider to be sexual because of its nature”,

and, in paragraph (c), if,

“its content, taken as a whole, is such that a reasonable person would consider it to be sexual”.

My noble friend and officials within his department helpfully held a meeting with us, at which they explained the difficulties that they faced in defining a sexual image. Colleagues were concerned that a topless photograph should be capable of being within the definition of “sexual”, in appropriate circumstances, and particularly where photographs of younger women were concerned. On consideration, we have come to the conclusion that paragraphs (b) and (c) enable the contents of such an image to be considered widely and that a successful balance is struck by the proposed wording. However, I should be grateful if my noble friend would confirm that he considers that paragraphs (b) and (c) considerably widen the ambit of paragraph (a).

I conclude by paying tribute to all those colleagues who have campaigned for the criminalisation of revenge porn. I particularly mention in this context my honourable friend Julian Huppert MP, who raised this issue in the other place and has worked hard on it. In view of the commendable position taken by the Government, we will not be pressing Amendment 98.

[Baroness Brinton (LD)]

My Lords, I, too, have my name to Amendment 98 and wish to echo the points made by my noble friend Lord Marks on government Amendments 103, 104 and 105. I also support his comments about the definitions of private and sexual, and look forward to hearing the Minister’s response.

In recent years, a new series of unpleasant crimes relating to technology have developed. Cyberstalking, cyberbullying, sexting and now revenge porn are all about abuse of power and spreading information widely on the net. I shall focus on the devastating effects of the circulation of these images, and why the three criteria outlined in the government amendments are inextricably linked and why the presence of all three demonstrates the state of mind of the perpetrator. The proposed offence is vile. It is not just blackmail, although it has been used by some for that effect. It is not just the betrayal of trust and confidence of a former partner, but about the long-term damage on the partner who has been exposed. It is an abuse of power designed to cause distress, and with the nature of social media today, the perpetrator can hand it on and on to others, including professional revenge porn sites whose participants often then choose to troll the original victim, their family and their work colleagues.

Many victims of revenge porn are too scared and humiliated to speak out but a few brave individuals do. Hannah Thompson has and is now a leading campaigner for the new law. Here is what she had to say about why she thinks the law needs to change:

“For those who don’t know, revenge porn is non-consensual pornography. It’s where a person uploads an explicit image of somebody without their permission. Often the victim’s name and contact details are attached. Not only is it humiliating but it has the potential to reach out of the screen and destroy people’s lives … Of course, there is nothing inherently wrong with sharing private images of yourself but you do so with a reasonable expectation of privacy. There is, however, something intrinsically wrong with using explicit images as a tool to harass and humiliate someone. As a victim of revenge porn, I can’t even begin to explain how relieved it makes me to think that Parliament is seriously considering these proposals. Most victims of revenge porn are shamed and forced into silence for fear that more people will find their images. They’re made to tolerate the abuse and forced to suffer through tedious copyright claims because it’s the closest they can get to having something done. I’ve spoken to victims who were suicidal, whose images were taken on a Polaroid camera before they had any concept of the Internet, who have lost their careers and whose relationships have been ruined. All the while, those who have published the images are free to sit back and revel in the pain they’ve caused to someone whose only crime was to trust them”.

Celebrities have been caught too. Photos of Jennifer Lawrence were found by a hacker, and Rihanna and Tulisa Contostavlos have had private nude photos released by former partners. But we do not know the size of the problem because only eight out of 43 police forces collect data. The Huffington Post said:

“The data that was available suggests revenge porn is on the rise: there were 35 reported incidents in 2012, jumping to 58 in 2013, and there have been 53 in the first half of this year alone”.

Tonight, Hannah and the other victims are in the public gallery watching our proceedings. Their bravery in fighting for revenge porn to be made a criminal offence would also mean that our police forces will start to catalogue this offence more carefully. Most of all, it will send a message to former partners who commit this appalling act that the effect it has on the victims is not one that our wider society is prepared to accept.