In this era of extensive use of online platforms, a prominent issue is image-based sexual abuse. This is a broad term which refers to a range of abusive behaviours including the taking and/or distribution of nude or sexual images without consent, including threats to do so, with the intent to embarrass or to cause distress.
Unfettered and widespread access to technology and online platforms has made this easier and faster, creating distressing and long-term ramifications for the victims. The need of the hour is for a single, uniform law that governs image-based sexual abuse to ensure that proper provisions are in place to protect potential victims.
Currently, there are several laws (mostly created before the advent of fast media) which need to catch up with the pace of sharing/distorting images without consent. These laws also need to deal with the long-term and continued distress caused by the permanence of online images. The gravity of this distress can be seen through the case of TV personality and Love Island contestant, Georgia Harrison, a recent victim of image-based sexual abuse. She has highlighted the consequences of image-based sexual abuse: emotional, physical, and financial (to name just a few). In her particular case, she has explained that several brands and producers have refused to consider her for jobs due to the stigma that has been attached to her name.
This blog will look at some of the gaps which presently exist in the laws regarding image-based sexual abuse.
One of the specific criminal offences that covers instances of image-based sexual abuse is Section 33 of the Criminal Justice and Courts Act 2015, which outlaws the sharing and publishing of images/videos with the intent to cause distress to the person appearing in the specific media. The intention to cause distress cannot be found “merely because this was a natural and probable consequence of the disclosure” (Section 33(8)). The implication of this is that if the images and films are being shared for other purposes, such as if anyone decides to share such images without consent only because he or she thought it was funny, or to coerce the victim, it would not constitute a criminal offence.
The need for robust, victim-based laws can be further highlighted in the area of deepfakes (computer-generated sexual images which have manipulated ordinary images). In October 2022, in an online article, a deepfake content creator, Gorkem, spoke to the BBC and admitted that the risk of prosecution could make him stop. He confessed to being in denial about how his actions impact women because he does not “really feel consent is required-it’s a fantasy, it’s not real”.
This kind of abuse is an offence in England and Wales, but it is classed as a communications offence and not a sexual offence. The implication of this is that victims in these cases are not guaranteed anonymity, in contrast to cases which are classed as sexual offences cases. The reach of this problem has increased in recent years, as now, creating deepfakes can be as easy as tapping a button. It is also incredibly deceptive, as, in this world of misinformation, these deepfakes are realistic and very credible, but entirely fabricated.
From Gorkem’s comments, it is evident that having clear legal frameworks in place might ensure that at least some perpetrators realise that creating such images is not viewed by society at large as harmless, and certainly not by the victims.
An aspect that could be particularly traumatising for victims is the prolonged presence of their images/ videos on the internet. Unless the owner of the relevant website or the social media provider is linked to any legal case, the present laws do not require the removal of the media. Consequently, a victim may face embarrassment and distress, not only at the time of the incident but also in the future. Having clear laws in place that address long-term accountability for websites to ensure the removal of the images and videos is the only proper solution.
A further concern relates to voyeurism. This is a criminal offence under the Sexual Offences Act 2003 but fails to take into account the use of CCTV cameras in public places. Additionally, laws regarding the use of CCTV cameras in public washrooms are limited. Such CCTV cameras can be misused to breach the privacy of individuals and can be used to share images in online public spaces for sexual gratification, without the consent of the individual.
In 2019, the Sexual Offences Act was extended to include upskirting (taking a picture up someone’s skirt), which was a welcome change after considerable campaigning. However, the Act and its amendment do not include a similar provision for ‘down blousing’ behaviour (a term for taking photos down a woman’s top without her consent).
All these limitations are connected by a similar thread: the lack of victim-centred laws. Gaps in the present laws (many highlighted above) show that the system is woefully slow in keeping up with advances in technology and societal behaviours. There is little focus on the impact upon a victim - not to mention discrepancies in anonymity between sexual offences and image-based sexual offences. This has wide-reaching repercussions including victim reluctance to report potential offences to the police.
A single, uniform piece of legislation that seals the gaps in criminal offences in this area and focuses on the victim’s distress will provide potential victims with adequate and necessary safeguards, as well as increase their confidence in the legal process. The Online Safety Bill is large, complicated, and seemingly ever changing. However, in the years to come, this may bring some changes and improve the current condition.
By Khushi Narula and Arnav SatapathyFirst year Law (LLB) students at Queen Mary University of London