Sexting: flirting with law – Rhory Robertson and Nichola Leach

This week a freedom of information request revealed that children as young as 6 have been questioned by the police over “sexting” – the act of exchanging sexually explicit images and messages – “a sext”.

This disclosure highlights the alarming rate at which the unsavoury trappings of social media and messaging are filtering down to the youngest members of society. There is a deficiency in educating children on the risks associated with messaging and social media. Whilst many see it as innocent fun, they fail to appreciate that it is illegal and can leave people vulnerable to bullying, and in more sinister cases attract the attention of sex offenders.

The press has reported that in the last year alone there have been 742 investigations into under 18s for making, possessing or distributing indecent images, with nearly 25% of those arrested under the age of 13. This is five times the number investigated in 2012. These figures follow on from the news last week that a 14 year old boy who took a naked selfie and sent it to a girl at his school, with whom he had been flirting, found himself in hot water with both the school and the police. What started out as harmless teenage fun has turned into a potentially life-changing misdemeanour on the part of the boy and the girl involved.

The individuals in question were engaged in “sexting”. The boy sent the image to a girl, of the same age, using Snapchat – an app which automatically deletes direct messages within 10 seconds. Risk free you may think? Well, not quite.

Before the image ‘self-destructed’ the girl saved it to her phone and shared it with other pupils. This image later came to the attention of a police officer associated with the school. The individuals have both been added to the police intelligence database for making and distributing an indecent image of a child, under the Protection of Children Act 1978. Despite no charges being brought, the teenagers’ details could be revealed in advanced criminal records checks, hindering future employment opportunities, especially work involving children.

For teenagers to be held criminally accountable for sending a sext is something few would have predicted. This case has seen the criminalising of teenagers under a law which is intended to protect them. It seems ludicrous that the incident was escalated to such a level that the police were involved in what was seemingly harmless teenage fun. Is it not enough that the teenage boy has suffered the humiliation of having an intimate image go viral amongst his peers, let alone contend with the worry that details of the incident may resurface at some point in the future. Surely the boy was a victim in all of this?

Whilst the general public may have sympathy for this individual, the law did not. At 14 years old he was not considered to be the victim. Yet it is an interesting dichotomy that had the boy been 18 years of age he could have been considered the victim following the criminalisation of revenge porn under the new Criminal Justice and Courts Act 2015. That is assuming it could be proved that the girl circulated the image to their peers with the intention of causing the boy distress.

Most teenagers own a smart phone, and apps such as Snapchat have become integral to a twenty-first century friendship. Zoe Hilton of the National Crime Agency’s Child Exploitation and Online Protection Centre has described how “sexting is becoming quite normal for teenagers.” With mounting pressure to join in with the latest craze, few teenagers would give a second thought to sending such communications. Like many, they thrive on the perceived anonymity of social media and the internet.

Few realise how quickly an individual can lose control of these images exposing young people to more than embarrassment. It can lead to bullying, anxiety and in some cases suicide. ChildLine has revealed that it provided 1,300 counselling sessions last year for young people worried about sexting. Whilst statistics from the Priory Group in 2015 have shown that admission for anxiety in teenagers has risen by 50% in the last four years, with sexting being considered a key factor in this trend.

What happens if an individual is the recipient of an unwanted sext? Most people will generally send sexts with certain knowledge that the recipient wants to see, or at the very least will not be offended by, the communication. However, if the sext containing an explicit image is sent to someone who may well be distressed by it, this may be a crime under the Malicious Communications Act 1988 and harassment laws.

Forwarding on the images received runs the risk of a breach of copyright law. When a photo is created, the creator automatically becomes the owner of the copyright. If the receiver then circulates the image, or posts it on a website, then they would be infringing copyright. The receiver, in disseminating the image more widely, also risks a breach of privacy. Yet it is difficult to imagine many copyright claims in this context.

This case highlights the naivety of children when sending such images, although the problem is not confined to children. Many do not recognise what constitutes ethical and unethical behaviour in the sharing of sexual images, nor do they understand the legal and personal implications of sexting. As the law continues to evolve to keep abreast with challenges posed by new methods of communication, education on the potential risks of online conduct is a lesson which would serve both children and adults well.

Overcome with the excitement of a fledgling romance, a quick pause to consult the law before sending an intimate image may not be rule number one in the flirting manual. However, a pause for thought before taking what may prove to be an irrevocable step should be a guiding principle.

Nichola Leach is an associate in the Defamation & Reputation Management Team and the Cyber Investigation Unit at Collyer Bristow LLP.