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Published: Tue, 19 Feb 2019

Should sexting be criminalised to combat the issue of revenge porn?

1.      Introduction ­

This study will explore the issue of revenge porn which is a niche area under cyber-bullying in the 21st century. The definition of revenge porn is a distribution of explicit images or videos of an individual without consent.[1]This is usually done by an ex-lover with the objective to cause humiliation after a break up.[2] After the law on revenge porn: Criminal Justice and Courts Act 2015 and Serious Crime Act 2015 have incorporated in England and Wales, it has prosecuted more than 200 people with a rise of 15% from 4.5% from 2014 until 2016.[3]Danny Shaw, BBC Home Affairs Correspondent discovered most of the revenge porn allegations were labelled as ‘domestic violence’ before passing of the legislations and most police were sceptical to be involved with domestic violence.[4]

The revenge porn begins in the 80s, a pornographic magazine has published a nude picture of a woman which taken by her husband in a camp.[5]The publication did not spread easily unlike the social media platforms with just one click away. In the 21st century, Hunter Moore has opened a website which published nude photographs of people along with name and addresses.[6] The aim of the website is to humiliate the victim from a post bitter break up.[7] Moore said ‘we have all masturbated to you or laughed at you (…) it cannot get any worse’. [8] Moore’s website and action have earned him a title of ‘revenge porn supervillain’.[9]

As a comparison the technology was different 20 years ago, SMS mobile platform has transformed to a MMS based technology platform which enable exchange of nude or semi-nude pictures among peers.[10]The downside of this platform is that it can be easily downloaded from social media such as Facebook, Instagram and Snapchat. A survey of 653 participants range from age 13-26, have admitted to ‘send, posted online, whether nude or semi-nude image or video of themselves’.[11] About 40% of boys have admitted to send ‘sexually suggestive messages’. [12]The survey also shown most teenagers will continue sexting more when reaching adulthood.

The evolutions of technologies have improved significantly which enabled information to be shared easier in a shorter time span.[13] As such, the perpetrators will take advantage of this platform to remain anonymous by using different identity and prey on the vulnerable victims.[14] An example, in Amanda Todd case,[15] Amanda was 12 years old which has been manipulated to send explicit videos of her to a paedophile which had continuously harassed her. After years of being harassed and bullied by paedophile and classmates, she posted a video on Youtube about her battle with cyber-bullying and ended her life after the video at aged 15. [16]

Firstly, this study will investigate the various statutory legislations in the United Kingdom on revenge porn and evaluate the statutory provision requirements. This will aim to show the possible inadequacy of criminal proceeding and subsequently on the discussion on civil proceeding under the common lawin UK. This study will then critically analyse the position of children under revenge porn in the UK. This objective is show that in certain circumstances the legislations are paradoxical when applying the law to the facts. Following that, this study will analyse the situation of revenge porn with European Court of Human Rights and Human Rights Act 1998. Later, this study will go on to consider the arguments on the justifications and limitations when criminalising the victimand perpetrator under revenge porn. Lastly, a small fraction will be devoted on the issue of Brexit with children sexting.

2.       Existing legislations in the UK on revenge porn

2.1 Pre Criminal Justice and Courts Act 2015

The Obscene Publication Act 1959 was the first statute to regulate the issue on revenge porn; however the statute is no longer relevant in the modern times as the standard of obscenity has changed drastically.[17] Now, the perpetrators might not have the illicit content in possession but the court will assess whether he/she knew that such publication of content to the public will result in physical and emotion damage for victim. [18]

Two decades later, issues of revenge porn might be caught under section 1 of Malicious Communication Act 1988, if the intimate contents have amount to ‘indecent or grossly offensive’. [19]This again may not be applicable in the 21st century as the definitions of ‘indecent or grossly offensive’ have changed significantly.[20]This is supported by Professor Ian Cram, as such images might not considered ‘obscene’ in the language ofthe Act which was not made or intended for the issues of revenge porn since it was made during the pre-internet era.[21]Perhaps it is justifiable that there have been constant pressure from public and lawyers to change the law to suit the modern issues.[22] Subsequently, it will be an offence to send ‘grossly offensive’ content through ‘public electronic communication network’.[23]

Under Section 127(3) Communication Act 2003, it can be argued that the downside is the consequences of the breach will result in summary convictionas opposed to 2 years sentence under section 1 of Malicious Communication Act.This again raises what amount to grossly offensive as it may different according to culture and place.

If such offences are repeated, the victim can bring an action under Protection from Harassment Act 1997. This might be difficult as most circumstances the content is uploaded once and re-post or re-upload by others, this might not constitute as repeated offences.[24] Besides that, the court also holds a higher threshold for prosecuting a perpetrator as what may be distressing for one person might not be distressing for another.[25]Even when the perpetratoris prosecuted, some cases might not reveal to the public due to defendant rights under ECHR.[26]

If the victim has taken ‘selfies’ and subsequently have published online without consent, the victim can invoke the issues of copyright.[27]In JPH v XYZ[28], if images or videos were taken by the victim, this will make the victim as the author of her workforce and could bring a legal action against the publication.[29]If the defendant intends to be profited from his publication, this will attract criminal liability. [30]

2.2 Post Criminal Justice and Courts Act 2015

Recently, section 33(1) Criminal Justice and Courts Act 2015, it will be an offence for a person when ‘disclosing private sexual photograph or film without consent and intention to cause distress’. Agate argued that the court has recognised the potential negative impact on victim, with such the court has increased the sentencing from 6 months to 2 years.[31] The offender can avoid being prosecuted if he can show that ‘disclosure was made in the course of the publication of journalistic material’[32] and ‘the offender reasonably believe that the publication of the journalistic material would be in the public interest’[33] and ‘the offender has the reasonably believe that the photograph or film has disclosed for reward with the consent of the individual whom appear in the photograph or film’[34]

Under the s33, the Act has extended beyond the context of ‘indecent’ and ‘obscene’ under Malicious Communication Act 1988. The photograph or film will consider ‘private’ and ‘sexual’ under s33 as long ‘it is not something which is normally seen in the public’ [35]. Under s35, if it is something which a reasonable person would regard the content to be sexual then it will fall under the Act definition of ‘sexual’.

Professor Phippen has work extensively in exploring the cultural reality when applying s33 legislation on sexting.[36] In this globalisation, millennial grew up with the social media platform it is not surprising that most teenager engaged in sexting. Phippen argued it is widely practiced by the celebrities and adult as a result most teenagers would not think it is odd. [37]Phippen observed that it is not the self-generating images that are risky but it is the unauthorised distribution to the third parties which are not addressed.[38] This is when the s33 intervene, in circumstances when the images were sent on the request from another due to pressure (usually in relationship), the victim should not be faced with ‘potential threat of prosecution’ instead they should be provided with mental and emotional support. [39]Whereas, if images received by a third party which later redistribute the images to another third party or to any social media platforms, these individual should be facing the threat of prosecution as such action clearly shows an ‘intention to cause the victim in distress’. [40]

However, the third party who redistribute the images often argue that he/she does not have the malicious intention to cause harm to the victim as the third party were doing it just for laughter.[41] This might be a problem; Phippen argued[42] it may fall outside ‘intention to cause the victim in distress’.[43] But in most circumstances, the third party will redistribute the material out of a post bitter relationship.

Recently, under s15 Sexual Offences Act 2003, which state it is an offence where a person who is above the age of 18 intentionally communicate a sexual conversation with someone who they reasonably believe that is below 16 years old for the purpose of his/her sexual pleasure.[44] This offence can be sentenced up to 2 years which is similar with CJCA 2015.[45] However, it will not be an offence if it is ‘ordinary social or educational interaction between children and adults or communication between young adults themselves’. [46]­­

Thus far, although the law has changed to accustomed to the current needs, the defendant is able to go scot-free is if he/she able to rely on the defences and this may leave victim helpless despite having a genuine claim.  

3.       Revenge porn under common law in United Kingdom

Hypothetically speaking, if the offender managed to rely on any defences, then the victim can turn to common law under misused of private information or breach of confidence. It is crucial to keep these two area separate, Lord Nicholls made it clear ‘[A]s the law has developed breach of confidence, or misuse of confidential information, now covers two distinct causes of action, protecting two different interests: privacy and secret (“confidential”) information’.[47]He go on and state ‘[s]omeinstances information may be in the public domain, and not qualify for protection as confidential, and yet qualify for protection on the grounds of privacy.’[48] 

Lord Nicholls in Campbell v MGN[49] argued ‘[U]nlike the United States, there is no over-arching, all embracing cause of action for ‘invasion of privacy’(…) but to attract protection the information had to be of a confidential nature’.[50] He further quoted Megarry J classic exposition[51]which state ‘[T]he cause of action was that the information of this character had been disclosed by one person to another in circumstances ‘importing an obligation of confidence’ even though no contract of non-disclosure existed.’[52]

The act of sexting is often both ‘confidential’ and ‘private’ and usually donein circumstances which ‘import an obligation of confidence’ i.e: during the course of a relationship between two individuals. Thus the victim can bring under both misused of private information and breach of confidence. The court state no confidentiality relationships need to exist between parties as confidential will be implied.[53]If the perpetrator knew that there was some expectation of confidentiality attached to the images and if it were to be published it will potentially harm the victim, the court will hold the perpetrator to be liable.

In Campbell v MGN[54], Lord Hope state in determining whether the victim has a reasonable expectation of privacy will depends on ‘[w]hat a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant had faced the same publicity’[55]. Even before the incorporation of Human Rights Act 1998 the court usually grant the victims an injunction to stop further publication of their private life[56] this was demonstrated in two significant cases. In Barrymore v News Group Newspaper Limited[57]and Stephen v Avery[58], involved issues of a claimant who sought to prevent the disclosure of intimate information to the public. In the former case, Lord Jacob state it is ‘[c]ommon sense when people enter into a personal relationship (…)the information about the relationship is for the relationship and not for a wider purpose’[59]. For the latter case, Sir Nicolas dismissed the defendant’s appeal on the basis it will be unconscionable for the receiver to disclose such private information to public when the parties in the relationship have expressly done it in confidential, then the equity will intervene to protect the information. [60] He further added ‘[w]here information was given in confidence, it remained confidential(…)information concerning sexual conduct between two people conveyed to a third party in confidence remained confidential albeit that both parties to the sexual act were free to disclose that information(…)court enforce duty imposed on recipient who received in confidential details of the informant’s sexual behaviour’[61]

Based on two cases above, it is submitted that disclosure of private photographs will invade victim’s privacy way severe compared to written private documents. The House of Lords in Douglas v Hello![62] argued ‘[p]hotograph does more than convey information and intrudes on privacy by enabling the viewer to focus on intimate personal detail, there will be a fresh intrusion of privacy when each additional viewer sees the photograph and even when one who has seen a previous publication of the photograph, is confronted by a fresh publication of it’. [63]This argument fit closely with the current issue of revenge porn, as most materials posted online are in graphic depictions rather than words. Even if they are in written documents, it is less intrusive compared to a graphic depictions. The court added, the grant of injunction is justified not because the material published was embarrassing or involved some secret message but ‘[t]he offence is caused because what the claimant could reasonably expect would remain private has been made to public’.[64]

4.       Revenge porn towards children in United Kingdom

4.1 Issue

It is arguable that anyone under age 18 will be prosecuted if shares a ‘obscene or indecent’ photograph of herself/himself as per section 127(1)(a) Communication Act 2003, as so far there is no proof that adults   have been prosecuted under this Act.[65] Gillespie criticised stating it is paradoxical since the age of consent to have sexual intercourse is 16. [66] He further argued whether those who redistribute the explicit images should be criminalise or criminalise those who take explicit images of themselves. The criminalising has to necessity with the ‘[a]ssesment of the reality of the pressing social need’ and not simply a desirable outcome.[67]

Another issue, if someone who is below the age consent has taken a sexualised image of themselves and distributes it, the criminalising might seems to be disproportionate. Although there is a risk when the child engaged in sexting, the images might be redistributed by the third party. But in reality, the conduct of sexting is similar with the conduct of sexual intercourse. In fact, it can cause way more harm such as sexually transmitted diseases i.e: HIV/AIDS and unwanted pregnancy.[68]These events can change a child’s life more drastically than the redistribution of explicit contents.[69] As such, it is paradoxical and disproportionate to conclude a less risky conduct (sexting) should be criminalised in light of ‘proportionality’ and ‘necessity’ but being engaged in a legitimate sexual intercourse will not be criminalised. [70]

4.2 Solution

The above shows the possible problems faced by the victim who is also the offender. The UK Health Secretary, Jeremy Hunt suggested in the issues of sexting among children the Internet Service Providers (ISP) should provide the technological solution to combat the problem.[71] Hunt strongly reckon that ‘[s]ocialmedia companies need to step up(…) they can be the solution to the issue of mental ill(…) not the cause of it’.[72]

Hunt suggested image recognition algorithms and statistical recognition as solution to sexting.[73] In image recognition algorithms, through a mathematical process known as ‘hashing’ which produce special values which represent a specific image in the system.[74] The algorithm applies to each different type of colours of the images and the colour of each pixel in an image. Whereas, the ‘feature extractions’ is a keyword that associate with images or the filenames. [75]

As for the statistical recognition, it uses mathematical method to determine the similar characteristic in images.[76] This method is based on the proximity of different types of pixels colours in images and frequency of a specific part in an image.[77] Recently, the statistical recognition is used in conjunction with artificial intelligence (AI) which is used as an alternative method to determine the similar characteristic within the candidate child exploitation images in the system. [78]

4.3 Weaknesses of image and statistical recognition

However, the algorithms and statistical recognition merely identify the common characteristic according to the pixel and frequency of the images and does little in understanding the meaning of images.[79] This only shows the estimation result which based on a similarity of a collective data rather the similarity on the meaning of the images.[80] This might be unfair as two ‘indecent’ images might have the similarity in terms of ‘pattern recognition task’, but it might not be the same if it is recognised by a human being. [81]

In relation to the term ‘indecency’, it is difficult to identify the threshold of what images considered ‘indecent’. From a legislation perspective, Under Section 62 Coroners and Justice Act 2009 prohibits images of a child if ‘image is grossly offensive, disgusting[82] (…) focuses solely or principally on a child’s genitals or anal reg­­­ion or portrays a number of defined sexual acts.’[83] This interpretation will cause difficulties in identifying what amount to indecent. Most adult’s definition of indecent may differ from a teenager’s perspective. For example, should the threshold in classifying indecent images be fully or partially nude of a body?[84]Margarent and Phippen argued if a depiction of a teenager in a sexually appealing swimwear is ‘indecent’, whether such classification should be excluded under statute definition of pornographic?[85]

Recently, a blog on the algorithm has introduced a ‘nudity detection algorithm’.[86]The detection operate based on ‘the size and percentage of skin’ to identify whether it is a nude or non-nude image.[87] For example, if there is a high percentage of skin which matched the skin tone on the person facial features, it will automatically conclude there is a high chance of nudity in an image. This method has showed to have an overall accuracy of 85.37%.[88] However, the drawback on this method it cannot detect nudity if there is absence of facial features on a person.[89]Another limitation in algorithm method is it will be unreasonable to expect the private ISP to take responsibilities in users’ mental health based on the algorithms, that suggest a teenager might be at risk despite the private ISP are not under government control which means ISP have little public accountability over the public domain. [90]

Clearly, algorithms considered as a technical intervention, before considering such intervention as solution to sexting, Chuck’s commented under Ranum’s Law- named after an IT network security researcher, which disputed that ‘[O]nce any organisation gets to a certain size, getting change to happen is more “social problem” and less “technical problem”.[91]

Despite the solutions put forward by the Hunt followed by the weaknesses of the proposed methods as discussed. The Home Office Counting Rules has launched an ‘Outcome 21’ which enabled the police enforcement to record the crime committed by the sex offenders but does not disclose the formal criminal record to the public. [92]The Home Offices work closely with the High Tech Crime Unit which prevents the circulation of documents in the social media. Although the solutions put forward by Hunt may not be realistic, the ‘Outcome 21’ proved to shows the UK professional bodieshave tried to apprehend the sex offender while doing it in a way which protects the offender from potential psychological trauma.[93]­

5.       Revenge porn under Human Rights Act 1998 and European Court of Human Rights

The adolescent has regarded sexting as a form of expression that protects under Article 10. The ECHR also recognised sexting is protected under Article 8 as right to privacy, since Article 8 is an intrinsic part of Article 10.[94]

The ECHR state every opinion can protected under the Act. This contrast with a Supreme Court case in USA, Miller v California[95] argued obscene material such as child pornography will not be protected under First Amendment of Freedom of Speech. Under ECHR,to be protected under Article 10, the material must be done with duties and responsibility in pursuant to achieve a legitimate aim that is necessary and proportionate.[96]

Gillespie gave an illustration: it prohibits a person to take an indecent photograph of a child pursuant to The Protection of Children Act 1978. [97]In such cases, the offender will not be able to rely on Article 10, since such material has not donewith responsibilities or carry any legitimate aim i.e.:  ‘protection of health or moral’ under Article 10(2). Therefore, both ECHR and USA reached the same decision but using different methods of interpretation.[98] Gillespie further argue for a legitimate aim, it must fall under any of the relevant duties or responsibilities under Article 10(2) and clearly taking sexualised images of children will fall outside of Article 10.[99] Thus, ECHR recognises the freedom of expression can be limited, if the ­­­­­­defendant is unable to pass the Article 10(2) threshold.

In JPH v XYZ[100], both Article 8 and 10 were involved. The claimant (JPH) is a successful actor which has been in a relationship with XYZ for several months. During their relationship, they have taken intimate photographs and videos using JPH mobiles phones. Subsequently, when the relationship went bitter, XYZ threatened to release the photographs and videos to social media platforms and magazine publications. The first issue, by applying AMM v HXW[101], the court was in the view that both claimant and defendant entitled anonymity because JPH’s relationship were known to the public and anonymity on claimant alone will not provide sufficient protection as identification of defendant will be able to trace the identification of claimant. Second issue, the court granted an injunction without noticeas XYZ has sent the photographs and videos to JPH’s ex-partner. As such, there were ‘compelling reasons for doing so’,[102]because ‘[I]f prior notice were given there was a real risk that disclosure would occur before the hearing(…) defeat its purpose’. [103] Lastly, the court were in favoured of JPH’s Article 8 privacy as opposed to XYZ’s argument on Article 10 freedom of expression, by revealing the intimate photographs were clearly motivated by revenge[104] and will not be at ‘public interest(…) to be published’.[105]

Similarly, with JPH, in PJS v News Group Newspapers Limited[106], a famous person which granted an injunction to stop further publication of his personal sexual activities (outside of his long term relationship). Jackson LJ considered the first issue, where a ‘[m]ere gratification of readers’ prurient curiosity does not serve the public interest’.[107] The second issue is that the court disputed claimant’s extramarital affairs’ matters will not serve any public interest or debate.[108] In previous social media articles stated, both parties have portrayed an image of commitment in the public eyes (both parties were in a relationship for years). Subsequently, the parties had other sexual relation and were in an open relationship.

The court acknowledge that ‘[c]ommitment may not entail monogamy’[109] and disputed such clarification on the shift of relationship will not benefit the public but only feed the curiosity of public. [110] The last issue which the court considered was the position of claimant’s children[111], such disclosure will put the children in a position to be bullied in school or in social media platforms.[112] Thus, claimant was granted injunction[113]as there were ‘compelling reasons for doing so’.[114]

Based on the above two cases, it is crucial to look at Lord Steyn ratio decidendi in reS(FC)(a child)[115]. If both articles are conflicting with each other, he argued ‘[F]irst neither article has as such precedence over the other(…) two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary (…) justifications for interfering with or restricting each right must be taken into account’.[116]Thus, if applying Lord Steyn’s judgement and looking at JPH and PJS case, it suggest that the outcome of each case was done in accordance with ‘the proportionality test’ between Article 8 and 10.[117]

6.       Justifications in criminalising under revenge porn

6.1 Psychological, social and pecuniary harm

As discussed above, Hunter Moore has been prosecuted as consequences of his website which caused thousands of men and women in distressed.[118]Apart of that, Citron interviewed a victim (Jane) that most victims choose to stay at home because they are not sure what is going to happen once they leave the house.[119] Some victims also suffers mental illness such as depression and anxiety, as a result this affect their work performances at work since it is difficult to remain positive.[120] Jane also revealed that most of the abusive partners threatened to disclose the intimate photographs to public if they intend to leave the relationship, this leave the victim to be helpless. [121]

Furthermore, in terms of employment most employers will go to a search engine platform to find more information about the applicantsandmost of the time employers have rejected applicants from their finding without consulting whether such findings were correct.[122]Apart from the impact on the victim alone, it also shows how women and girls have little control over their bodies and lives. Not only it damages the life of a person but it shows another form of prejudice towards women in society. [123]

  • Utilitarianism and retributivism

The ethical arguments in criminalising will be utilitarianism and retributivism. The classic belief of utilitarianism in a purpose of legislation is to provide a maximum happiness in society, utilitarian will not promote punishment to the offender unless it can be proven that it will provide a maximum happiness or benefit to society. Seidman quoted Holmes approach in utilitarian which as ‘[I] don’t doubt that your act was inevitable for you but to make it avoidable by others we propose to sacrifice you to the common good(…) regard yourself as a soldier drying for your country(…) the law must keep its promises’.[124] Another aspect is that the criminal justice system should prosecute adults who committed crime under revenge porn since this will become a deterrence mechanism for the public which will provide an increase of happiness in society in accordance to utilitarianism. [125]However, this may not be applicable for children because the sex registration record will affect the child’s future employability and psychological well-being. Thus, criminalising a child will reduce the level of happiness in society as opposed to an adult.As for retributivism, it is harsher than utilitarianism.[126] It does not measure the level of happiness in society, the classic belief is that the wrongdoer should be punish in proportionate with the crime that they have committed.[127] It seems to suggest that the retributivism operate in ‘an eye for an eye’ manner. [128]

7.       Limitationsin criminalising under revenge porn

7.1 Pecuniary aspect

As discussed above, if the victim were to bring a claim under common law (misused of privacy or breach of confidence) it will require the claimant (victim) to fund the cost of litigation from the beginning and will only get the cost of litigation if the claimant won the case. Even if the victim has won, the defendant might not have the funds to compensate. Besides that, there is a possibility that the legal proceeding will extend longer if there is insufficient evidence against defendant.[129]Thus this might be a problem for victims if they are not financially well off. Similarly, under Criminal Justice and Courts Act 2015 will be applicable not only to public figures but ordinary individuals, the only drawback will depends on whether the applicant (ordinary individual) is financially well off.[130] This shows that both civil and criminal proceedings options will be available for victims, but pecuniary means will be a huge factor.

Furthermore, victims most likely will lose their job as the consequences of the images which posted online. As such, being devastated and jobless they might not be able to bring a lawsuit since they might not be able to cover the lawyer’s fees. [131]Since the issues of revenge porn are quite recent, this also shows the law might not be well developed to assist the lawyer and victim.[132] This might make the lawyers to refuse to take on such cases due to its uncertainties. 

  • Limitations understatutory legislations and common law

Under Section 67 Serious Crime Act 2015, there is a ‘prima facie discrimination’ between adult and children when it comes to sexting.[133] For example, a 16 years old can have consensual intercourse with anyone above 16, but will prosecuted if she send a nude picture of herself. Similarly, anyone above 16 can take a nude picture and not get caught under the legislation as opposed to a 16 years old.[134]

Whereas for common law, if the victims can be compensated the money might not be able to erase the pain that suffered. This has highlighted in an Australian Supreme Court case, Wilson v Ferguson[135], the defendant (colleague) was ­­­in a relationship with claimant, after the break upand hehas released the intimate photographs and videos on Facebook[136]. The victim was unable to work for 3 months and was terminated later which has loss an income of ‘$13,404’. [137] The court awarded an equitable compensation of ‘$48,404’ and injunction was granted to stop the explicit content for further public­ation. [138] During the trial, the victim was depressed, humiliated, has been going for counselling and was in constant distressed as both parties’ colleagues and friends have seen the explicit images.

Furthermore, Mitchell argued that in circumstances when the victims request for an injunction to stop the intimate publication from multiplying this only works if the victim aware of such publication. [139]This might be an issue since most defendant would most likely do it in private, and by the time the victim know about the publication it has most likely been share rapidly and difficult to trace. [140]

7.3 Public awareness

Based on Phippen’s previous interviews with minors both females and males, most of them are not aware that there are various statutory legislations to prosecute those who take explicit images of themselves.[141] Most responses were either silence or surprises.[142] In certain circumstances, one minor argued the person who sends the explicit images of themselves should be prosecuted since they should not send the images if they do not want the explicit content to further distribute. [143]Phippen also discovered even if the minor knew about the legislation, most often they are aware to seek help from adult or family. [144]The only reason is they are afraid of being judged and humiliated by their peers or family. Ironically, almost 50% of adults themselves have engaged in the conduct of sexting.[145] In these scenarios, the minors will feel helpless and lonely and might even lead to committed suicide as seen Amanda Todd outcomes as discussed above. [146]

8.       Children Sextin­g and Brexit

The Women and Equalities Committee has put forward various suggestions to combat sexual harassment and sexual violence in schools.[147]One of the suggestion to seek the government to support a specialised organisation to assist the school on the issue of revenge porn.[148]However, the response state such planning will not be implementing yet but the government might suggest an alternative support to the school.[149]

The government has agreed that Sex and Relationship Education (SRE) should be a mandatory subject in the education institution in the UK.[150] However, the latter part of the response state that ‘SRE delivery is actively under review(…) improving quality and accessibility.’ Since the guidance of SRE was previously updated 16 years ago. [151]The response further state ‘we will look at how SRE can fit into the whole school approach’.[152]

Recently, Maria Miller, Chair of the Women and Equalities Committee disputed with the recent issue of Brexit, it has become the government’s ‘singular focus’.[153] Miller argued ‘[I]t would not be acceptable if ministers were distracted by Brexit(…) every child needs the opportunity to have a good teenage life(…) make sure they get the proper education they need.’[154]Furthermore, with the pressure of Brexit, there are possibilities of renegotiating the contract with every education institution to make sure the (SRE) will be mandatory,[155] since Brexit will enable certain institutions to have greater flexibility in their administration and no longer need to follow the National curriculum standard. [156]

9.       Conclusion

The Criminal Justice and Courts Act 2015 has clearly acknowledged the potential harm on victims.[157]Despite that, the court also balanced defendant’s rights by laying down several defences. In the circumstances, if the offender is able to rely on the defences, the victim may turn to common law as discussed above.

Based on both Barry and Stephens cases on revenge porn, the common law remedies seems to be more appealing to victim. In comparison to legislation statutory, common law would most likely favour the victim, as the information is already ‘confidential’ in nature and any disclosure will amount to breach of confidentiality.[158]However, the drawbacks will be financial means and can be problematic if the victim is very shy or reluctant to bring forward a claim.[159]If the odds are against the victim, the victim still can turn to HRA 1998 and ECHR, in JPS and PJS both have concluded that if the disclosure of the information was not done in ‘proportionality’[160] the victim most likely will be compensated.

However, the main issue in this study lies on the uncertainty with the implementation of Sex and Relationship Education for children[161], along with the lack of awareness surrounding the issue of sexting that makes it unfair to prosecute the children.[162] Since the Women and Equalities Committee initiate the Sex and Relationship in the late 2016 and with the recent issue on Brexit, it is essential to have an extensive research on this matter.

In conclusion, this study has shown various legislations that can provide adequate protection to the victim yet balancing the offender’s freedom of expression. However in relation to children, Hunt’s proposal on banning sexting as a whole is able solve the problems of sexting in theory but in reality, such practice is impossible and is beyond the control of ISP.[163] As Marcum Ranum argued, ‘[Y]ou cannot solve social problems with software’.[164]It will be much realistic if there is more awareness on the potential harm on sexting instead of prosecuting whoever engaged in the sexting. The harm of sexting and matters on revenge porn among children will continue as the uncertain implementation of Sex and Relationship Education remains. 

10. Bibliography

Table of Cases:

United Kingdom

Barrymore v News Group Newspaper Limited [1997] FSR 600

Campbell v MGN [2005] UKHL 61, [2003] QB 633

Coco v A N Clark (Engineers Ltd)[1968] FSR 415, [1969] RPC 41

Donald v Ntuli [2010] EWCA Civ 1276, [2011] WLR 294

Douglas v Hello 2005] EWCA Civ 595, [2006] QB 125

Duchess of Argyll v Duke of Argyll [1967] Ch 302, [1965] 2WLR 790

ETK v News Group Newspapers Ltd [2011] EWCA Civ 439, [2011] 1 WLR 1827

JPH V XYZ, [2015] EWHC 2871 (QB)

Majrowski v Guy’s and St Thomas’s NHS Trust, [2006] UKHL 34, [2007] 1 AC 224

Mosley v News Group Newspapers [2008] EWHC 1777 (QB)

PJS v News Group Newspapers Limted  [2016] EWCA Civ 100

re S(FC)(A child) [2004] UKHL 47, [2005] 1 AC 593

Stephen v Avery [1988] 2 WLR 1280 , [1988] Ch. 449

Australia

Wilson v Ferguson [2015] WASC 15

United States of America

Connecticut Department of Public Safety v. Doe 538 US1 (2003) (SC)

Miller v California 413 US 15, 36-37 (1973)

Table of Legislation:

United Kingdom

Copyright, Design and Patents Acts 1988

Communication Act 2003

Criminal Justice and Courts Act 2015

Human Rights Act 1998

Malicious Communication Act 1988

Protection of Children Act 1978

Protection from Harassment Act 1997

Sexual Offences Act 2015

The Obscene Publication Act 1959

The Protection of Children Act 1978

Secondary Sources:

Books:

Murray A , ‘Information Technology Law: The Law and Society’, (3rd edition, Oxford University Press, 2016) 392

Journal Articles:

Agate J, ‘Civil Injunction in ‘revenge porn’ case: JPH v XYZ and Persons Unknown (2016) 27 Ent LR 18

Christoper R L, ‘Deterring Retributivism: The Injustice of “Just” Punishment’, (2002) 96 Nw UL Rev 843

Gillespie A A, ‘Adolescents, Sexting and Human Rights’ (2013) 13 HRLRev 623

Mitchell J, ‘Censorship in cyberspace: Closing the net on “revenge porn”’, (2014) 25(8) Ent LR 283

Seidman L M, ‘Soldiers, Martyrs and Criminals: Utilitarian Theory and the Problem of Crime Control’, (1983) 94 Yale LJ 315

Peersman C and others, “iCOP: Live forensics to reveal previously unknown criminal media on P2P networks” (2016) 18 Digital Investigation 57

Phippen A and Agate J, ‘New Social Media Offences under the Criminal Justice and Courts Act and Serious Crime Act: the cultural context (2015) 26(3) Ent LR 82

Waldman A E, ‘A Breach of Trust: Fighting Non Consensual Pornography’ (2015) 102 Iowa LRev 709

Newspaper Articles:

Beaumont P and Hodgson N, ‘Obscenity law in doubt after jury acquits distributor of gay pornography’ The Guardian (7 January 2012), <www.theguardian.com/law/2012/jan/07/obscene-publications-act-future-doubt>  accessed 12/12/2016

Cross E J, ‘Not alone: Amanda Todd case emphasises the importance of helping victims of cyberbullying,’ Mirror News (18 October 2012)  <www.mirror.co.uk/news/world-news/how-amanda-todd-case-emphasises-1385462> accessed on 2/4/2017

Weale S, ‘Maria Miller: Brexit hindering compulsory sex education plans’ The Guardian (23 January 2017) <www.theguardian.com/education/2017/jan/23/maria-miller-brexit-hindering-compulsory-sex-education-plans> accessed 2/4/2017

Conference paper:

Cram P I, ‘The Protection of Human Rights in the UK Constitution: Freedom of Expression and Social Media’ , (Conference Paper presented at National Taipei University, October 2014)<www.prnewswire.com/news-releases/the-national-campaign-to-prevent-teen-and-unplanned-pregnancy-and-cosmogirlcom-reveal-results-of-sex–tech-survey-large-percentage-of-teens-postingsending-nudesemi-nude-images-65362722.html > accessed 30/1/2017

Websites:

‘A Brief History of Revenge Porn’ (Sneaky) ,<http://www.sneakymag.com/sex-2/brief-history-revenge-porn/> accessed 22/11/2016

Briefing note: Police action in response to youth produced sexual imagery (‘Sexting’)’, (College of Policing, November 2016), <www.college.police.uk/News/College-news/Documents/Police_action_in_response_to_sexting_-_briefing_(003).pdf> accessed 3/12/2016

Coles R C, ‘Crime and Publication-does the UK need a revenge porn law?’ (Withersworldwide, 29 July 2014), <www.withersworldwide.com/blog/crime-and-publication-does-the-uk-need-a-revenge-porn-law/> accessed 1/1/2017

Ranum’s Law (Kianmeng.org February 2017)<www.kianmeng.org/2014/02/ranums-law.html> accessed 3/4/2017

Revenge Porn: ‘More than 200 prosecuted under new law’ (BBC NEWS, 6 September 2016) <www.bbc.co.uk/news/uk-37278264> accessed 22/11/2016

Sutton J, ‘Improving Nudity Detection and NSFW Image Recognition’ (Algorithmia15 June 2016) <http://blog.algorithmia.com/improving-nudity-detection-nsfw-image-recognition/> accessed on 27/3/2017)

Siciliano R, ‘Do You Share Passwords with Your Partner?’ (Securing Tomorrow. Today.,4 February 2013) <https://securingtomorrow.mcafee.com/consumer/family-safety/love-relationships-technology-survey/> accessed  9/12/2016

 ‘Sexting in Schools and Colleges: Responding to incidents and safeguarding young people’ (UK Council For Child Internet Safety), <www.gov.uk/government/uploads/system/uploads/attachment_data/file/551575/6.2439_KG_NCA_Sexting_in_Schools_WEB__1_.PDF>accessed  3/12/2016

The National Campaign to Prevent Teen and Unplanned Pregnancy (Sex and Tech: Results from a Survey of Teens and Young Adults 3 October 2008) <https://thenationalcampaign.org/sites/default/files/resource-primary-download/sex_and_tech_summary.pdf>accessed on 22/11/2016

Official Materials:

Women and Equalities Committee, Sexual harassment and sexual violence in schools: Government response to the Committee’s Third Report (2016-17, HC 826) [2]


[1]Ari Ezra Waldman, ‘A Breach of Trust: Fighting Non Consensual Pornography’ (2015) 102 Iowa LRev 709, 710

[2]‘A Brief History of Revenge Porn’ (Sneaky) , <www.sneakymag.com/sex-2/brief-history-revenge-porn/> accessed 22/11/2016

[3]Revenge Porn: More than 200 prosecuted under new law’ (BBC NEWS, 6 September 2016) <www.bbc.co.uk/news/uk-37278264> accessed 22/11/2016

[4] ibid

[5]Alexa Tsoulis-Reay, ‘A Brief History on Revenge Porn’ (New York, News and Politics, 21 July 2013) <http://nymag.com/news/features/sex/revenge-porn-2013-7/>accessed 22/11/2016

[6] Sneaky (n 2)

[7] Sneaky (n 2)

[8] Alexa (n 5)

[9] Ibid

[10]The National Campaign to Prevent Teen and Unplanned Pregnancy (Sex and Tech: Results from a Survey of Teens and Young Adults 3 October 2008) <https://thenationalcampaign.org/sites/default/files/resource-primary-download/sex_and_tech_summary.pdf>accessed on 22/11/2016

[11]Ibid 1.

[12]Ibid 1.

[13]Emma-Jane Cross, ‘Not alone: Amanda Todd case emphasises the importance of helping victims of cyberbullying,’ (Mirror News 18 October 2012)  <www.mirror.co.uk/news/world-news/how-amanda-todd-case-emphasises-1385462> accessed on 2/4/2017

[14] Ibid

[15]Ibid

[16] Cross (n 13)

[17]Andrew Murray, ‘Information Technology Law: The Law and Society’, (3rd edition, Oxford University Press, 2016) 392

[18]Peter Beaumont and Nichi Hodgson, ‘Obscenity law in doubt after jury acquits distributor of gay pornography’ The Guardian (7 January 2012), <www.theguardian.com/law/2012/jan/07/obscene-publications-act-future-doubt>  accessed 12/12/2016

[19]Professor Ian Cram, ‘The Protection of Human Rights in the UK Constitution: Freedom of Expression and Social Media’ , (Conference Paper presented at National Taipei University, October 2014)<<www.biicl.org/documents/550_taiwan_uk_project_-_prof_ian_cram_conference_report_final_28_4_2015.pdf?showdocument=1 >accessed 30/1/2017

[20]Ibid7.

[21]Ibid2.

[22]Rupert Cowper-Coles, ‘Crime and Publication-does the UK need a revenge porn law?’ (Withersworldwide, 29 July 2014), <www.withersworldwide.com/blog/crime-and-publication-does-the-uk-need-a-revenge-porn-law/> accessed 1/1/2017

[23] Communication Act 2003, s 127(1)(a)

[24] Protection from Harassment Act 1997, s2 and s2A

[25]Majrowski v Guy’s and St Thomas’s NHS Trust,  [2006] UKHL 34, [2007] 1 AC 224 [30] (Nicholls LJ)

[26] ibid[30] (Nicholls LJ)

[27]Copyright, Design and Patents Act 1988, s1; s9 and s16; s18

[28][2015] EWHC 2871 (QB)

[29]Jennifer Agate, ‘Civil Injunction in ‘revenge porn’ case: JPH v XYZ and Persons Unknown (2016) 27 Ent LR 18, 19

[30]Ibid (n 27) s107

[31] Andy Phippen and Jennifer Agate, ‘New Social Media Offences under the Criminal Justice and Courts Act and Serious Crime Act: The Cultural Context (2015) 26(3) Ent LR 82

[32] Criminal Justice and Courts Act 2015, s33(4)

[33] ibid

[34] (n 33)  s33(5)

[35]Ibid  s35

[36]Phippen and Agate (n 31) 83

[37] Ibid 82

[38]Phippen and Agate (n 31)  85

[39] Ibid 86

[40] (n 33) s 33(1)(b)

[41] Ibid 85

[42] Ibid 85

[43] (n 33) s 33(1)(b)

[44]Explanatory Notes to Section 15 of Sexual Offences Act 2003,

[45]Serious Crime Act 2015, s 67(3)

[46] Explanatory Notes to the Serious Crime Act 2015, para 266

[47] Douglas v Hello![2007] UKHL 21, [2008] 1 AC 1 [255]

[48]Ibid [255] (Nicholls LJ)

[49][2005] UKHL 61, [2003] QB 633

[50]Ibid[13]

[51]Coco v A N Clark (Engineers Ltd)[1968] FSR 415, [1969] RPC 41, [47-48]

[52] Campbell (n 49) [13]

[53]Duchess of Argyll v Duke of Argyll [1967] Ch 302 [332] (Ungoed-Thomas LJ)

[54]Campbell (n 49)

[55] ibid [99]

[56]Contostavlos v Mendahun [2012] EWHC 850 (QB)  [25] (Tugendhat J)

[57][1997] FSR 600

[58][1988] 2 WLR 1280 , [1988] Ch 449

[59]Barrymore (n 57) 602

[60]Stephen (n 58) [449]

[61]Ibid [454-455]

[62][2005] EWCA Civ 595, [2006] QB 125

[63]Ibid [105]

[64]Douglas (n 62) [107]

[65]Alisdair A. Gillespie, ‘Adolescents, Sexting and Human Rights’ (2013) 13 HRLRev 623, 630

[66]Ibid 637

[67]The Sunday Times v United Kingdom (1992) 14 EHRR 229, [234-236]

[68]Ibid 642

[69] Gillespie (n 65)

[70] Gillespie (n 65) 637

[71] Andy Phippen and Margaret Brennan, ‘’Doing More’ to end sexting- facts, fictions and challenges in the policy debate on young people’s sexting behaviour’, (2017) 28(3) Ent L Rev 91

[72] Ibid 94

[73] Ibid 92

[74] Ibid  93

[75]C. Peersman, and others “iCOP: Live forensics to reveal previously unknown criminal media on P2P networks” (2016) 18 Digital Investigation 57

[76]Phippen and Brennan (n 71) 92

[77] Ibid 93

[78]Peersman (n 75) 51-54

[79]Phippen and Brennan (n 71) 92

[80] Ibid  92

[81]Phippen and Brennan (n 71) 92

[82] Coroners and Justice Act 2009, S62(2)(b)(c)

[83]ibid s62(6)(a)(b)

[84]ibid s62(2)(a)

[85]Phippen and Brennan (n 71) 92

[86] James Sutton, ‘Improving Nudity Detection and NSFW Image Recognition’ (Algorithmia 15 June 2016) <http://blog.algorithmia.com/improving-nudity-detection-nsfw-image-recognition/> accessed on 27/3/2017)

[87] ibid

[88] ibid

[89] Sutton (n 86)

[90]Phippen and Brennan (n 71) 91

[91]‘Ranum’s Law’ (Kianmeng.org February 2017)<www.kianmeng.org/2014/02/ranums-law.html>accessed 3/4/2017

[92]‘Sexting in Schools and Colleges: Responding to incidents and safeguarding young people’ (UK Council For Child Internet Safety), <www.gov.uk/government/uploads/system/uploads/attachment_data/file/551575/6.2439_KG_NCA_Sexting_in_Schools_WEB__1_.PDF>accessed  3/12/2016

[93]‘Briefing note: Police action in response to youth produced sexual imagery (‘Sexting’)’, (College of Policing, November 2016), <www.college.police.uk/News/College-news/Documents/Police_action_in_response_to_sexting_-_briefing_(003).pdf> accessed 3/12/2016

[94] Gillespie (n 65) 635

[95]413 US 15,36-37 (1973)

[96]Sunday Times (n 67)

[97] Gillespie (n 65) 636

[98] Ibid 636

[99]Ibid  636

[100][2015] EWHC 2871 (QB)

[101] [2010] EWHC 2457 (QB)

[102] Human Rights Act, s 12(2)(b)

[103]JPH  (n 28) [4] (Popplewell J)

[104]ibid [2]

[105] (n 102) s 12(4)

[106] [2016] EWCA Civ 100, [2016] EMLR 17

[107]PJS v News Group Newspapers Limted [2016] EWCA Civ 100 [33] (as cited in Donald v Ntuli [2010] EWCA Civ 1276[2011] WLR 294 [19-21] (Maurice Kay LJ)

[108] Ibid [20]

[109] PJS (n 107) [46]

[110]Ibid [57]

[111] Ibid [61]

[112]ETK v News Group Newspapers Ltd [2011] EWCA Civ 439, [2011] 1 WLR 1827

[113]PJS(n 107) [62]

[114](n 102) s 12(2)(b)

[115][2004] UKHL 47, [2005] 1 AC 593

[116]ibid[17] (Steyn LJ)

[117] Ibid [17]

[118] Sneaky (n 2)

[119]Danielle Keats Citron and Mary Anne Frank, ‘Criminalizing Revenge Porn’ (2014)  49 Wake Forest LRev 345, 359

[120]Citron and Frank (n 119) [351]

[121] Ibid [351]

[122]Citron and Frank (n 119)  [351-351]

[123] Ibid [348]

[124] Quoted in Louis Michael Seidman, ‘Soldiers, Martyrs and Criminals: Utilitarian Theory and the Problem of Crime Control’, (1983) 94 Yale L.J. 315 (as cited in Holmes-Laski Letters 806 (M. Howe ed. 1935) 

[125]Seidman (n 124) 320-321

[126]Russell L. Christoper, ‘Deterring Retributivism: The Injustice of “Just” Punishment’, (2002) 96 Nw U L  Rev 843, 973

[127] ibid 881

[128]Ibid 846-849

[129]Citron and Frank (n 119) 359

[130] Agate (n 29) 19

[131]Citron and Frank (n 119) 358

[132] Ibid  358-359

[133] Gillespie (n 65) 638

[134] ibid 638

[135] [2015] WASC 15

[136] Ibid [38]

[137] ibid [31]

[138] Ibid [99]

[139]Justine Mitchell, ‘Censorship in cyberspace: Closing the net on “revenge porn”’, (2014) 25(8)Ent L R 283

[140]Ibid 286

[141]Phippen and Agate (n 31) 85

[142] Ibid 85

[143] Ibid 85

[144] Ibid 85

[145]Robert Siciliano, ‘Do You Share Passwords with Your Partner?’ (Securing Tomorrow. Today., 4 February 2013) <https://securingtomorrow.mcafee.com/consumer/family-safety/love-relationships-technology-survey/> accessed  9/12/2016

[146] Cross (n 13)

[147]Women and Equalities Committee, Sexual harassment and sexual violence in schools: Government response to the Committee’s Third Report (2016-17, HC 826) [2]

[148] Ibid [78-79]

[149] Ibid [80]

[150] Ibid [30-31]

[151] Ibid [56]

[152] Ibid [56]

[153] Sally Weale, ‘Maria Miller: Brexit hindering compulsory sex education plans’ (The Guardian, 23 January 2017) <www.theguardian.com/education/2017/jan/23/maria-miller-brexit-hindering-compulsory-sex-education-plans> accessed 2/4/2017

[154]Weale (n 153)

[155]ibid

[156]ibid

[157]Phippen and Agate (n 31)

[158]Campbell (n 49)

[159] Citron and Frank (n 119) 358-359

[160]re S (FC) (n 115) [17] (Steyn LJ)

[161]Sexual harassment and sexual violence in schools (n 149) [56]

[162]Phippen and Agate (n 31)

[163]Phippen and Brennan (n 71) 91

[164]Ranum’s Law (n 91)


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