Protecting victims of intimate image abuse: the Online Safety Bill

On 25 November 2022, the government confirmed its intention to implement further changes to the Online Safety Bill in an attempt to strengthen the protection offered to victims of intimate image abuse.

The Government has accepted the Law Commission’s recommendations in the 2022 Intimate Image Abuse Final Report to modernise the law relating to intimate image abuse. In that report, the Law Commission defines intimate images as those that are either sexual, nude, partially nude, or of toileting. It includes photographs and videos but excludes audio recordings.

The amendments are an attempt to tackle the increasing concerns around the proliferation of the use of technology and social media to take, alter and share intimate images and footage without consent. The existing legislation was considered insufficient to address the growing problem, which was being outpaced by technological advancements. The amendments attempt to simplify the current law and broaden the scope of existing offences, such that more perpetrators may be charged, prosecuted, and potentially sentenced to imprisonment.

The new amendments will criminalise for the first time the sharing of “deepfakes” without consent – that is, manufactured media in which a person in an existing image or video is digitally replaced with someone else’s likeness, which is often pornographic in nature.

The amendments will also make it easier for persons intentionally sharing intimate photos without consent (whether for sexual gratification or not) to be charged, as it would no longer be a requirement to prove the sharer intended to cause humiliation, alarm or distress to the victim – making it much wider in scope than the existing offences. In addition, more serious offences will also be included where there was an intent to cause humiliation, alarm or distress, and for obtaining sexual gratification.

In terms of immediate next steps, the Government will propose an amendment to the Online Safety Bill to criminalise the intentional taking or sharing of an intimate image of a person without their consent, and where there is no reasonable belief that they consent – this is the new “base offence”. In due course, the Government intends to introduce additional amendments to cover the balance of the Law Commission’s recommendations, including:

• The Government has indicated it will enact stricter laws in future amendments in attempt to strengthen the measures designed to combat “downblousing”, to ensure the activity is treated more consistently with “upskirting”.
• It has also been signalled that a component of the future amendments will include offences targeting abusive behaviour including equipment installation and hidden cameras.
• The Law Commission’s recommendation includes the creation of a specific offence for threatening to share intimate images.
• The amendments would also introduce new protective measures for victims, including ancillary orders for automatic lifetime anonymity for victims of intimate image abuse. Victims would also be offered special measures when giving evidence at trial. This is intended to encourage those who have fallen victim to intimate image abuse to come forward.

Commentary surrounding the recommendations and the Government’s confirmation that it intends to implement the recommendations has generally been positive, and the reform is being praised as a constructive way forward to seek to protect the safety and privacy of victims against the serious harms caused by abusers of intimate images.