The term ‘Revenge Porn’ is now a widely understood term describing the act of someone uploading sexually explicit images of an individual to the internet without their consent. Such conduct can now lead to criminal prosecution but also a claim in the civil Courts.
In accordance with Section 33 of the Criminal Justice and Courts Act 2015, it is a criminal offence to disclose intimate images of a person without their consent and with the intention of causing distress. Unfortunately, very few complaints result in a criminal charge under Section 33. This is largely because of the element of the offence known as men’s rea, as it needs to be proven that the publication was motivated by an intention to cause distress.
There is no such requirement with a civil claim and therefore this is an alternative for a claimant wishing to take some action. There have been two high-profile revenge porn cases in the civil Courts recently: the first being FGX v Gaunt [2023] EWHC 419(KB), and the second being Georgia Harrison’s claim against Stephen Bear. In both of these cases, the Judges opted for the phrase ‘image-based abuse’ rather than revenge porn. In Harrison v Bear, Master Victoria McCloud commented as follows:
“The term ‘revenge porn’ is commonly used to describe the Defendant’s conduct but the term conveys the impression that a victim somehow deserved what happened to them. The description suggested by Counsel and used in this judgment, is image-based abuse.”
It appears that the term ‘image-based abuse’ will be adopted by the civil Courts going forward rather than the term revenge porn. A victim of image-based abuse can pursue a claim for damages and other remedies in the civil Courts. Depending upon the facts of the case, the victim could pursue a claim for the misuse of their private information, breach of confidence, harassment, and/or a breach of the UK GDPR.
Misuse of private information
The statutory framework for the law on misuse of private information derives from the Human Rights Act 1998 and the European Convention of Human Rights (ECHR). Article 8 of ECHR protects a person’s right “to respect for his private and family life, his home and his correspondence”.
With image-based abuse cases, the images in question are intimate images depicting someone’s sex life. Such images would fall under the definition of “private life” present under Article 8.
To be successful in a claim for misuse of private information, the Court looks at whether there is a reasonable expectation of privacy in the information concerned and where there was a balancing exercise in relation to any competing rights (such as freedom of speech etc).
In terms of whether there was a reasonable expectation of privacy in respect of the information, the Judge in the case of Mosley v News Group Newspapers Ltd stated:
“one is usually on safe ground in concluding that anyone indulging in sexual activity is entitled to a degree of privacy – especially if it is on private property and between consenting adults…”
Breach of confidence
Breach of confidence is closely linked with the misuse of private information and both are usually pleaded together. Simply, the breach of confidence is the disclosure or use of confidential information. The main difference between this and the misuse of private information is that with breach of confidence, you do not need to prove that the information is in relation to someone’s “private life”.
Harassment
Section 1 of the Protection from Harassment Act 1997 (PFHA) sets out that a person must not pursue a course of conduct that amounts to harassment of another and which he knows or ought to know amounts to harassment of the other.
In accordance with Section 7 of the PFHA, harassment is defined as causing a person alarm or distress. The Act says that you must have experienced at least two incidents by the same person.
Therefore, if a person has been a victim of image-based abuse on more than one occasion by the same perpetrator, a claim under the PFHA could be possible. It is possible to pursue either a criminal or a civil claim under the PFHA.
GDPR breach
Depending upon the content of the video and/or images shared, the information could constitute personal data in accordance with the Data Protection Act 2018 and/or the UK General Data Protection Regulation (UK GDPR). If the information in question contains details regarding an individual’s sex life (which in an image-based abuse case it will) the data would be classed as special category personal data.
There is a general prohibition under Article 9 of the UK GDPR meaning you are only allowed to process special category data under very specific circumstances. It is a breach of the UK GDPR to process special category data in circumstances not specifically set out in Article 9.
Remedies
The usual remedies for image-based abuse cases are injunctions to restrain further use of the images/videos and damages to compensate a successful claimant for hurt feelings and distress.
How can we help?
Ruby Ashby is a Senior Associate in our expert Dispute Resolution team, specialising in data breach claims, inheritance and Trust disputes and defamation claims.
If you need any advice, please do not hesitate to contact Ruby or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us