What remedies are available for victims of image-based abuse?
The rise of mobile phones has led to a proliferation of intimate images being shared online without the consent of the individuals in them in what is known as image-based abuse – or, more colloquially, revenge porn.
The term ‘revenge porn’ is often, and misleadingly, associated with scorned ex-lovers. But the crime of sharing intimate images without consent also takes places in the context of computer hacks, harassment, coercion, domestic abuse and online grooming. The most common reports of image-based abuse come from teenagers and young adults, but people of all ages and genders can be affected.
Image-based abuse hit the headlines in 2014, when a hacker stole hundreds of private photos from the iCloud accounts of 240 people, including Jennifer Lawrence and Kirsten Dunst. More recently, reality TV star Zara McDermott drew from her personal experiences to expose the impacts of imaged-based abuse in schools in a BBC Three Documentary called ‘Revenge Porn.’ Earlier this year, Former Love Islander, Georgina Harrison was awarded £207,900 in one of the highest awards for a breach of privacy case after TV personality, Stephen Bear posted CCTV footage of her engaging in a sexual encounter on the website, OnlyFans (for which he is serving a 21-month prison sentence).
Despite these headline grabbing stories, this is a relatively new area, which affects both private individuals and those in the public eye.
Following the Law Commission’s 2022 Intimate Image Abuse report, the law is beginning to recognise that the harms caused online are comparable to those in the analogue world. The recently passed Online Safety Act 2023, introduces a new imprisonable sexual offence of sharing or threatening to share an intimate photograph or film without consent.
What are my rights?
Before the Online Safety Act 2023, the main protection for image-based abuse fell under s. 33 of the Criminal Justice and Courts Act 2015, which made it an offence to disclose a private sexual photograph or film with the intent to cause distress to the victim. This law fell short, in that it did not apply where the abuser intended some other purpose than to cause distress. The new provisions tighten the safeguards by making it illegal to deliberately and non-consensually share an intimate photograph or film, without any regard to whether the abuser intended to cause distress. The offence carries the punishment of a fine or a maximum of 6 months in prison. There are also two further, more serious, offences which involve sharing the images for the purpose of sexual gratification or with the intent to cause alarm, distress or humiliation, which carry a maximum prison sentence of 2 years.
What else can I do?
Having the images taken down
To alleviate the ongoing distress caused to victims of image-based abuse, it is especially important to have the images removed from the internet. One approach is to contact the social media provider or website themselves to request for the content to be removed. Historically, the response rate of tech companies has been poor and complaints which are answered are subject to long delays.
Under the new Online Safety Act 2023, companies will also be under a duty to use processes designed to swiftly take down illegal content once they are alerted to or become aware of it. OFCOM is required to issue a code of practice for service providers which includes measures that can be taken to comply with these duties and consult with the Domestic Abuse Commissioner and Victims’ Commissioner. Young people affected by image-based abuse can also use the Report Remove tool, developed by the IWF and NSPCC, to have images of them removed from the internet.
Another approach is to seek an injunction requiring the website to remove the content, however given the strengthened provisions of the Online Safety Act, we predict that this will be a last resort.
Seeking damages from the abuser
There are also mechanisms to target the perpetrator of the abuse themselves. Where the perpetrator is known to the victim, they can, in addition to or instead of pursuing criminal charges, obtain an injunction to prevent republication or require the material to be taken down. It is also possible to pursue a claim in harassment, misuse of private information, breach of the GDPR, stalking or blackmail against the perpetrator.
Significant damages are available for victims, though this will largely depend on the specific factual circumstances of the case. Earlier this year, Justice Thorton awarded damages of £97,000 for misuse of private information and infringement of privacy in the case of FGX v Stuart Gaunt. The case concerned intimate images of the claimant which were covertly recorded by her partner and posted online for financial gain. As a result, the claimant suffered an emotional breakdown and PTSD which sparked an enduring personality change. The damages included the cost of removing the images from the internet.
The case will be a useful guide when assessing damages in similar claims in future, however, for damages to be awarded, claimants will have to evidence harm and cannot only rely on the fact of non-consensual sharing of images itself to prove damage. In FGX v Stuart Gaunt, the claimant was able to rely on expert psychiatric evidence and show that the image-based abuse had a significant detrimental impact on her life. This can be contrasted with the case of Reid v Price, where the claimant was mocked and denigrated and sought counselling for stress and anxiety after his ex-wife shared recordings of him engaged in sexual activity. In that case, Warby J awarded £25,000 to bring it in line with the tariffs for general damages in personal injury and libel cases. It is clear then, that the effect that the image-based abuse has had on a claimant’s life will be central to any assessment of damages. In practice, many cases are settled without the need to go to trial.
How we can help?
Our team has a depth of experience in this growing area, having acted in:
- Represented 35 victims in a civil claim for voyeurism involving the covert filming of medical patients and obtained compensatory damages.
- Secured the removal of a pornographic video on which an actress’s head had been superimposed
- Advised a client in relation to the non-consensual sharing of explicit photos between minors in a school context.
Image-based abuse is a complex and relatively new area. Get in touch with our Reputation & Media team to receive confidential advice on how we can help.
Atkins Dellow are experts in Reputation Management and Privacy Law and are well equipped to help you with any image-based abuse disputes. For more information about the firm click the link below or call 0330 912 8338.