June 30, 2023

Online Safety Bill: the new intimate image abuse offence – initial analysis

by Dr Alexandros Antoniou, Lecturer in Media Law, University of Essex

This blog sets out initial analysis from Dr Alex Antoniou of Essex University on the Government’s new criminal offence of “sharing or threatening to share intimate photograph or film”; the full text of the amendment is here and the Ministry of Justice press release is here.

The Government has tabled its amendment to the Online Safety Bill to create a new offence of “sharing or threatening to share intimate photograph or film”. This amendment will be debated at Lords Report stage.

The provisions take a tiered approach:

  • There is a base offence of intentionally “sharing” an intimate image without consent.
  • This change removes the need to prove a motivation to cause distress, which is what the current formulation requires. Of note, there’s peculiar language as to what counts as “intimate” and “exposed” bodily parts.

There are also two more serious “sharing” offences:

  • the first is based on intention to cause “alarm, distress or humiliation”
  • the second is based on intention to obtain “sexual gratification”

It would seem that criminalising merely “sharing” falls short of the Law Commission recommendations to also catch the act of “taking” intimate images[1]. Perhaps, the intention was to capture through “sharing” behaviour with a higher level of culpability. However, one criticism might be that the issue of collector culture (e.g., “trading” between men as a badge of social status) which is linked to misogyny, sexualisation, peer pressure/ harmful male bonding and what is seen as a “joke”, is not satisfactorily addressed in this way.

The “alarm, distress or humiliation” offence covers a perpetrator who does so with the intention of causing a victim alarm etc. but it probably does not cover the intention that another person (other than the perpetrator) will look at the image for the purpose of causing the victim alarm etc. On a first reading, this stands in contrast with the “sexual gratification” offence which expressly says the perpetrator shares for the purpose of them “or another person” obtaining such gratification.

All of the above are subject to exemptions which apply when there is a public element to the taking of the images. There is a “reasonable excuse” defence (perhaps to cover genuine medical or  educational reasons for sharing), an exclusion for sharing photos “of a kind ordinarily shared between family and friends” (the meaning of this is unclear) and a carve out for healthcare professionals when sharing images of children in connection with their medical treatment.

There is also a specific offence of threatening to share intimate images (which, presumably, would include threats made to the person depicted or to a third party). It is not clear on this initial analysis whether the exemptions apply to this offence too.

The first amendment tabled by the Government in this package (to insert the words “or altered” after “made” in cl 170(5) of the OSB HL 151) seems to be intended to tighten the wording, so as to capture the non-consensual sharing of different types of manufactured (computer-generated, computer manipulated etc.) intimate images (including “DeepFakes”).

[1] https://www.lawcom.gov.uk/project/taking-making-and-sharing-intimate-images-without-consent/