revenge-porn-pink-methLast week, there were whispers on social media that The Sun newspaper had made an editorial decision to axe page 3. These rumours appeared to be confirmed as fact when The Times, a sibling newspaper of The Sun, reported the decision. 

However, the mischief-makers at The Sun had other ideas. Under the heading “Clarifications and Corrections: Page 3”, a winking Nicole (aged 22, from Bournemouth) defiantly announced that reports of the death of page 3 had been greatly exaggerated and that The Sun’s readers would not be losing their page 3 titillation any time soon.

In the same week, two individuals were convicted of using social media for “revenge porn” attacks. I have written about revenge porn previously here and here. It can broadly be summarised as the distribution (invariably online) of intimate images of a non-consenting individual with the intent to humiliate that person.

The term “revenge porn” has come in for criticism. In many cases the images are of an intimate nature but they are not what would normally be termed pornographic. Indeed, Mr Justice Tugendhat underlined this distinction in the judgment he gave in a recent case where I acted for a victim of revenge porn. When making the order we were seeking, he said:

“The information sought to be protected includes three photographs of a personal nature taken by the Claimant of herself and sent by her to the Second Defendant during the course of their relationship, together with personal text messages. These are all of a sexual nature, but could not be described as pornographic”.

Perhaps “the non-consensual publication of intimate images” would be a more accurate description. However, the term “revenge porn” is catchy, it is media-friendly and it appears to have stuck.

The first court case last week involved Danika France, just 18 years old, who was convicted in Macclesfield Magistrates Court of offences under the Malicious Communications Act 1988. She had filmed her friend, Leah Trevena, having sex with a man she had met on an internet dating site. Ms Trevena had not given Ms France permission to film her and asked for the footage to be deleted.

Ms France claimed to have deleted the video but a month later the pair fell out and Ms France posted the 15 second video on her Facebook page, an act which caused Ms Trevena considerable distress and which the prosecuting barrister said left her feeling suicidal.

Ms France was handed a 12 month community order and a three month curfew, during which she must wear an electronic tag and she must be at her home between the hours of 7pm and 7am. The leniency of her sentence was met with criticism; she has, effectively, been “grounded”.

On the same day, Nathan Rhys Lloyd, aged 22, was convicted in Haverfordwest Magistrates Court of offences under Section 127 of the Communications Act. When his ex-girlfriend ended their three month relationship, Mr Lloyd logged into her Instagram account and uploaded a photograph of her posing in her underwear. He then changed her password so she could not delete it. He also posted a video “of a sexual nature” on the same page. Mr Lloyd was handed a lengthy community order and a restraining order.

The link between the two convictions last week and the recent shenanigans at The Sun is the key question of consent. Where intimate images are published without the individual’s consent it will, unquestionably, be a gross invasion of their privacy that is highly likely to cause considerable distress.

Leaving aside any moral questions about what role page 3 has to play in the 21st century, a debate for another day perhaps, it is worth reminding ourselves that page 3 models are consenting adults, whereas the burgeoning number of victims of the non-consensual publication of intimate images is fast becoming a serious problem.

Legislation is expected to come into force later this year which will make revenge porn a criminal offence, carrying a maximum custodial sentence of two years, and no doubt the question of consent will be at the forefront of legislators’ minds.

Alex Cochrane is a senior associate in the Defamation & Reputation Management Team and the Cyber Investigation Unit at Collyer Bristow LLP.

This post originally appeared on the Collyer Bristow LLP website and is reproduced with permission and thanks