Update to anonymity provisions for victims of image abuse
27/03/2024
New legislation has extended the right to lifelong anonymity to victims of image-based sexual offences, and journalists need to take note of how this might affect the reporting of such cases.
The Online Safety Act 2023 (“the OSA”) is now in force, and so I thought it might be useful to run through the changes that this new legislation brings – particularly those which affect the day to day working lives of reporters and editors alike.
You may recall reading reports back in June 2023 about amendments to the then Online Safety Bill which arose following campaigning led by Georgia Harrison (whose former partner was convicted and jailed for image abuse offences against her) and Dame Maria Miller MP (who had been contacted by one of her constituents after being affected by image abuse).
The OSA received Royal Assent in October 2023 and its aim in general is to improve the safety of the internet, particularly for children and vulnerable people by bringing UK laws in line with the digital world that we live in. But it has also strengthened the previously patchy collection of legislation dealing with image-based abuse offences, including so called “revenge porn”.
Prior to the OSA coming into force, the offence of “revenge porn” was covered by the Criminal Justice and Courts Act 2015, which was itself a novel piece of legislation when introduced. Though the relevant provisions of the 2015 Act are now repealed by the OSA, they still apply to any relevant conduct that took place between 13 April 2015 and 30 January 2024.
Under the new legislation the offence of “revenge porn” now falls into a group of offences known as image-based abuse which have been inserted into the Sexual Offences Act 2003 by the OSA. They include sharing intimate images without consent, sharing intimate images without consent with the intention to cause alarm, distress or humiliation and sharing intimate images without consent for the purposes of obtaining sexual gratification.
In addition, it is also now an offence to threaten to share an intimate image of a person even if such an image does not exist. If the perpetrator intends to cause the victim to fear that the threat will be carried out, or is reckless as to whether such fear will be caused, then the offence will be complete.
For the purposes of journalism, the crucial point about these changes is that the new offences now join the list referred to in Section 1(1) of the Sexual Offences (Amendment) Act 1992, meaning that where an allegation is made that one of these offences has been committed against an individual, that individual will be entitled automatically to anonymity in respect of that fact for the whole of their lives, unless they decide to waive that entitlement (in writing).
In addition, in its guidance, the Crown Prosecution Service now encourages its Prosecutors to apply for anonymity in cases where, due to the date that the conduct took place, the charge is brought under the old revenge porn provisions set out in the Criminal Justice and Courts Act 2015.
Our experience generally since the introduction of the offence of revenge porn in 2015 is that most reporters and editors will already have adopted the position that such individuals should remain anonymous in reports of these offences, so realistically nothing much will change.
However, this does mean that now in line with most other sexual offences, extra care will need to be taken when reporting cases of image-based abuse offences, to avoid a criminal conviction. The penalties for breaching these new obligations include an unlimited fine.
You have been warned…