The most weighty laws that could be incorporated in a revenge porn prosecution would fall under child protection and sexual offenses that carry sentences of up to 14 years.

The CPS has today [6 October 2014] updated its legal guidance regarding the prosecution of communications sent via social media with a clear section that explains how current legislation can be used to prosecute offences involving the malicious use of intimate media, sometimes referred to as ‘revenge pornography’.

This clarification does not signify a new approach but clearly sets out for prosecutors which laws can be used to bring these cases to court. In all cases the CPS will apply the most appropriate law which best addresses the alleged offending. It is a matter for Parliament to decide if further laws are needed or if changes need to be made to the current legislation.

A spokesperson for the CPS said; “No one should have to suffer the hurt and humiliation of ‘revenge pornography’ – a nasty and invasive crime that appears, anecdotally at least, to have increased as social media use has gone up.

“The Crown Prosecution Service prosecutes these cases using a range of current laws, and we have now clarified our legal guidance to set out clearly how these cases should be brought to court.

“Due to the very personal nature of ‘revenge pornography’ prosecutors are being asked specifically to consider the impact on the victims involved. The new guidance also makes clear that the context of each case needs to be considered alongside current guidelines to ensure that the most appropriate legislation is used when prosecuting. The public, and indeed those intent on attacking former partners in this way, can now see clearly that this is a crime that can and will be prosecuted.”

‘Revenge pornography’ is typically sexually explicit media that is publically shared online without the consent of the pictured individual and is usually uploaded by ex-partners. The images are often accompanied by personal information including the pictured individual’s full name, links to social media profiles and address, and are shared with the intent to cause distress or harm to the individual.

The guidance outlines:

• The issue in cases of ‘revenge pornography’ will be whether the message or communication is grossly offensive, indecent, obscene or false, not whether the image itself is indecent or obscene.
• Section 1 of the Malicious Communications Act 1988 deals with the sending of electronic communications which are indecent, grossly offensive, threatening or false, provided there is an intention to cause distress or anxiety to the recipient.
• Section 127 of the Communications Act 2003 makes it an offence to send or cause to be sent through a ‘public electronic communications network’ a message that is ‘grossly offensive’ or of an ‘indecent, obscene or menacing character’.
• Where there is more than one incident, or the incident forms part of a course of conduct directed towards an individual, a charge of harassment should be considered.
• Where the images may have been taken when the victim was under 18, prosecutors will consider offences under the Protection of Children Act 1978.
• In the most serious cases, where intimate images are used to coerce victims into further sexual activity, other offences under the Sexual Offences Act 2003 will be considered.

In order to prosecute, all cases must meet the evidential stage in the Full Code Test of the Code for Crown Prosecutors, and be considered to be in the public interest.

These offences would not normally be brought under the Obscene Publications Act.

We have informed the House of Lords Select Committee on Communications of this change, following their interest in the subject earlier this year. The CPS legal guidance on the prosecution of cases involving communications sent via social media were drafted specifically due to the rapid expansion of social media and can be found on the CPS website.