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07 Jan 2016

Revenge Pawn: Sex-tapes and marital disputes

As 2016 begins, the concept of the “fresh start” is apparently adopting a rather bleaker meaning for those practising in family law, who report this week that the annual tradition of the New Year divorce (nicknamed “D-Day”) is still going strong. Statistics out of the family law team at Irwin Mitchell report a 25% increase in instructions for divorces in January compared to any other month of the year.

Whilst advances in mediation and settlement arrangements are designed to ensure that these separations are as amicable as possible, there will always be relationships which are beyond repair and where the acrimony involved in dividing lives leads one partner to seek revenge ‘by any means necessary.’ We have an ever increasing digital imprint; mobile devices with cameras are ubiquitous. Relationships are not only started online; increasingly the most private aspects of that relationship are also conducted electronically. Images and videos meant for a partner can be shared and saved with the utmost ease, and the consequent damage can equally be done with just the click of a button.

Asset ownership, residency and contact for children, even reputations have the potential to be held to ransom in the context of privately created data. This infiltration of divorce cases by data protection matters has recently been commented on by Charmaine Hast, a specialist at Wedlake Bell who, in a recent article in The Brief, reports a 30% increase in cases involving “digital data disputes.” It is also reported by Ms Hast that clients involved in divorce proceedings are increasingly asking their lawyers whether partners can be forced to dispose of private and sensitive material created during the course of the relationship.

In such cases, it should be borne in mind that aside from data protection law and potential civil actions, there is a significant criminal law exposure in using private material as another pawn in the chess match of divorce. Apart from conventional criminal offences such as blackmail and harassment, family lawyers should be aware of the new “revenge porn” offence under section 33 of the Criminal Justice and Courts Act 2015. Section 33 makes it an offence to disclose private sexual photographs and films with intent to cause distress. Whilst the offence was created primarily to target the publication of private material on the internet, its wording does not in fact stipulate this as a condition. The offence is defined as giving, showing or making the material available to another without the consent of the subject and with the intent to cause distress to the subject.

In the context of divorce proceedings, it is almost inconceivable that a partner would consent to disclosure of any kind of private images or videos. It is equally improbable that any of the available defences could apply; the reasonable belief of previous disclosure with consent, necessity of disclosure for the purpose of preventing or detecting crime, or the publication for journalistic purposes in the public interest.

It appears, then, that the issue of whether disclosure of any private images or videos arising from or as a result of divorce proceedings could amount to a criminal offence will depend on the intention of the partner making the disclosure. Was the intention to cause distress to the other party? In the context of an acrimonious relationship breakdown and bitterly contested divorce proceedings, causing distress, or at least causing emotional and/or financial damage to the other party, is likely to figure prominently in the mindset of the person making the disclosure.  That person is now exposed to the real threat of criminal proceedings – whether a police investigation or a private prosecution initiated by the aggrieved party.

There is however some protection for individuals who disclose this material, in that it is not sufficient for the distress merely to be a “natural and probable consequence of the disclosure.” This is likely to cover instances where the extent of the damage is not foreseen or where there is an alternative (and reasonably believable) motivation for the disclosure. However, where the circumstances are such that it is clear the action was taken in order to cause distress, the CPS would be entitled to charge an individual with the offence, which carries a sentence of up to 2 years imprisonment. Since this legislation came into force in April 2015, the CPS reports several instances of completed and ongoing prosecutions; involving both the uploading or sharing of images via social media as well as direct sending to friends or family with the intent to cause upset and humiliation. Sentences in the completed cases range from Community Orders to 12 weeks imprisonment and suspended sentences of 24 weeks. Nearly all cases have also involved restraining orders and the imposition of tagging and curfews.

This risk of prosecution, combined with Ms Hast’s advice that such material will only be probative in the “no fault” divorce system where it pertains to a spouse’s earning potential, should send a clear message to those with fingers poised over the “send” button; that images and videos taken in the private domain during the course of an adult consensual relationship are for those parties’ eyes only. At no stage is this message more pertinent than when that relationship comes to a tempestuous conclusion.

This article is published in The Barrister.

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