Current project status
The current status of this project is: Complete.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
The Government has accepted the Law Commission’s recommendations to reform the law in respect of intimate image offences, made in the 2022 Intimate Image Abuse report. A number of these recommendations have now been implemented in the Online Safety Act 2023
The origins of this project are rooted in our Abusive and Offensive Online Communications Scoping Report which was published in November 2018. The purpose of that Report was to assess the extent to which the current law achieved parity of treatment between online and offline offending. We noted that there was considerable scope for reform and identified compelling arguments for a review of three branches of the law: the non-consensual taking and sharing of intimate images; hate crime; and communications offences. We have since published final reports on Hate Crime and Modernising Communications Offences.
In 2019, the Ministry of Justice asked us to conduct a review of the existing criminal law as it relates to taking, making and sharing intimate images without consent. We looked at the current range of offences that apply in this area and identified the gaps in the scope of protection currently offered. In February 2021, we published a consultation paper with provisional proposals for reform to the law. We published our report containing our final recommendations on 7 July 2022. The recommendations will create an intimate image offence regime that appropriately addresses wrongful and harmful behaviour and provides consistent and effective protection for victims.
As part of this project, we analysed consultation responses and evidence in relation to intimate image abuse in the context of so-called honour-based abuse. When the Women and Equalities Committee launched their inquiry into so-called honour-based abuse, we submitted for their consideration a summary of that analysis and evidence from our consultation. This has now been published as written evidence and is available here.
The increased use of smartphones and online platforms has made it easier to take photographs or film, alter or create images and send images to our family and friends or the public at large. However, this also means that it is now easier to take or make images of others or to distribute images of others without their consent (whether the images were taken consensually or non-consensually in the first place). This is particularly concerning when those images are “intimate” in nature, such as where the person is naked, engaging in a sexual act or when the image is taken up a person’s skirt or down a female’s blouse.
The non-consensual taking and sharing of intimate images can have a significant and long-lasting impact on victims. The harms they experience are serious and significant. These can include psychological harm such as anxiety, depression and post-traumatic stress disorder (PTSD), worsening physical health and financial harm either through time off work or through withdrawing from online spaces which reduces access to networking opportunities. In some cases, there have been reports of attempted suicide and self-harm.
Currently, there is no single criminal offence in England and Wales that governs the taking, making and sharing of intimate images without consent. Instead, we have a patchwork of offences that have developed over time, most of which existed before the rise of the internet and use of smartphones. Each offence has different definitions and fault requirements, and there are some behaviours that are left unaddressed. The limitations and gaps in the current law include:
- Inconsistency over the type of intimate images that are covered. For example, upskirting is currently a criminal offence but downblousing is not. Sharing an altered image, such as a deepfake, is also not covered.
- Not all motivations for taking or sharing an image without consent are covered by the current offences. Whilst motivations such as sexual gratification and causing distress are covered (although not consistently), other motivations such as sharing the images as a joke or to coerce an individual are not covered at all.
- Ancillary provisions and special measures such as automatic anonymity for complainants are inconsistently available.
We published our consultation paper on 26 February 2021; the public consultation ran until 27 May 2021. We received over 350 responses which have helped inform the recommendations we have made.
Our recommendations for reform
In our final report published on 7 July 2022 we make a number of recommendations for reform to the criminal law as it relates to taking, making and sharing intimate images without consent.
We recommend a new tiered framework of offences which uses one consistent definition of an intimate image, covers the full range of perpetrator motivations, and applies protective measures for victims consistently. This framework comprises the following five new offences:
- A base offence of taking or sharing an intimate image without consent.
- More serious offences:
a) An offence of taking or sharing an intimate image without consent with the intention of causing the victim humiliation, alarm or distress.
b) An offence of taking or sharing an intimate image without consent with the intention that the image will be looked at for the purpose of obtaining sexual gratification.
c) An offence of threatening to share an intimate image.
- An offence of installing equipment in order to commit a taking offence.
We define an “intimate image” as an image that is either sexual, nude, partially nude, or of toileting. These types of images show something that is inherently personal, private and intimate. Some images will fall into these categories but are less inherently private or intimate, such as images of people kissing. Consequently, we recommend that the definition of “intimate” should exclude images where they only depict something that is ordinarily seen on a public street, with the exception of intimate images of breastfeeding which would not be excluded. Additionally, we recommend that the taking or sharing of an intimate image that was taken in public, or has been previously consensually shared in public, should be excluded.
The definition of “intimate” focuses on what is shown in the image, not what the person was wearing or doing when it was taken. This means that “upskirting” and “downblousing” images (where an image is taken down, underneath or inside clothing without consent) will be covered. The limitations we recommend above will ensure that only the more intimate, and therefore harmful, downblousing images will be criminalised. Taking or sharing an image that shows only cleavage of a kind ordinarily seen on a public street, or shows only what the person was voluntarily exposing in public, will not be an offence.
In relation to the offences of sharing an intimate image without consent, and threatening to share an intimate image, we recommend that it should not matter whether that image is an original, altered or created in any way. This includes deepfakes and images that have been “nudified” where an app digitally removes clothing from a non-intimate image making the person appear nude.
For the base offence, we recommend that there should be a defence available to a defendant with a reasonable excuse. We also recommend two specific exclusions from the base offence for taking or sharing conduct that should not be within the scope of a criminal offence. The exclusions relate to the taking or sharing of an intimate image of a young child of a kind that is ordinarily shared by family and friends; and the taking or sharing of an intimate image of an incompetent child for their medical care or treatment, where there is parental consent.
We recommend that complainants of intimate image offences should benefit from automatic lifetime anonymity, automatic eligibility for special measures at trial, and restrictions on cross-examination of witnesses in proceedings. We also recommend that Sexual Harm Prevention Orders should be available and notification requirements be triggered in cases of intimate image abuse where there is relevant sexual conduct of sufficient seriousness.
On 25 November 2022 the Government confirmed that it will implement the Law Commission’s recommendations. The Online Safety Act 2023 now contains provisions that implement our recommendations for new offences of sharing and threatening to share intimate images. The Criminal Justice Bill as published on 14 November 2023 contains clauses that would implement our recommendations for new offences of taking intimate images without consent, and installing equipment in order to commit a taking offence.
Terms of reference
Our terms of reference were agreed as follows:
- to review the current range of offences which apply in this area, identifying gaps in the scope of the protection currently offered, and making recommendations to ensure that the criminal law provides consistent and effective protection against the creation and sharing of intimate images without consent.
- to consider the existing criminal law in respect of the non-consensual taking of intimate images, and the non-consensual sharing of intimate images, and to assess whether it is capable of dealing adequately with these behaviours.
- to consider the meaning of terms such as “private” and “sexual” in the context of the taking and sharing of images without consent, with reference to existing legislation, including (but not limited to) section 33 of the Criminal Justice and Courts Act 2015 and section 67 of the Sexual Offences Act 2003.
- to consider the potential impact of emerging technology which allows realistic intimate or sexual images to be created or combined with existing images and how the creation and dissemination of such images is dealt with under existing criminal law.
- to ensure that any recommendations comply with, and are conceptually informed by, human rights obligations, including under Article 10 (freedom of expression) of the European Convention on Human Rights.
The following issues remain outside the scope of our review:
- The review will not make recommendations about the existing law on the creation and dissemination of indecent images of children.
- Government is conducting active policy work on “platform liability”. This review will therefore remain focused on the liability of individual offenders.
- The Commission is undertaking a separate but related project reviewing the application of and potential reform to the communications offences under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003, which will run concurrently to this project. Matters relating to this review remain out of scope.
Additionally, despite the images being in some sense intimate, this review does not consider the issue of “cyberflashing”, the most well-known form of which is the sending of a picture of the sender’s penis via Bluetooth to a stranger’s mobile phone. We reviewed this behaviour and recommended an offence of cyberflashing in our report on Modernising Communications Offences, published in July 2021.
Contacting the Law Commission
Contact us here: email@example.com.
Area of law
Professor Penney Lewis