Sexting - is it a crime and can it be stopped?

Posted by Malcolm Johnson on

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Malcolm Johnson was quoted in last Tuesday's Sun, as part of their feature on sex texting or "sexting" which is the sending of texts via mobile phones containing pornographic images of children.

The police and social services stress that this kind of activity is a crime, pure and simple.

There are in fact four statutes that prohibit sex texting.

  • Section 1 of the Protection of Children Act 1978 prohibits the taking, distribution, or possession of indecent photographs of children. This is the statute that is commonly used in the criminal courts against people who are found with child pornography.
  • Section 48 of the Sexual Offences Act 2005 prohibits anyone from causing a child to become involved in child pornography.
  • Section 1 of the Malicious Communications Act 1988 makes it an offence to  send any electronic communication which is of an indecent or grossly offensive nature.
  • Section 160 of the Criminal Justice Act 1988 prohibits the possession of an indecent photograph of a child. 

There may also be a civil claim under the Protection of Harassment Act 1997 (which additionally provides for a criminal offence of harassment).

One example is the case of ABK v KDT & Anor [2013] EWHC 1192 (QB) (13 May 2013) where the Claimant made an application for an injunction. An order had already been granted to protect the Claimant's right to confidentiality and privacy in respect of certain personal photographs and information and, secondly to protect her from harassment in the form of communications addressed by the Defendants to herself and her employers to which she did not consent, and attempts by the Second Defendant to meet her, again without her consent. The Claimant was a married woman living with her husband. She had an affair with the Second Defendant. The Second Defendant was at the same time in a relationship with the First Defendant. The Claimant wanted to bring the affair to an end and to remain with her husband. The Second Defendant wished to continue the affair, and attempted to persuade the Claimant not to end it. The First Defendant was aggrieved when she discovered the affair. The information sought to be protected included 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 were all of a sexual nature, but could not be described as pornographic. Photographs and text messages of the Claimant came into the control of the First Defendant in circumstances which neither Defendant had been willing to disclose. In the absence of further information the court at any trial would be likely to infer that the Second Defendant disclosed the photos and information to the First Defendant. The First Defendant sent to the Claimant's husband, to two of her friends, and to a friend of her husband, an email to which the three photographs were attached. The First Defendant included in the email a threat to inflict "enough pain and humiliation matching my own during your love affair". The Claimant said that the Second Defendant was on occasions violent and threatening to her, particularly while she was attempting to bring an end to the relationship.

Mr Justice Tugendhat said that he was satisfied that at any trial the Claimant would be more likely than not to establish that the photographs and the other private information the subject of the claim ought not to be disclosed to anyone, and that the conduct of the Defendants amounted to harassment. Accordingly the Claimant was entitled to a further order substantially in the terms of the earlier order.

See also the case of AMP v Persons Unknown [2011] EWHC 3454. In this case, the Claimant's mobile phone was stolen whilst she was at University. The phone contained sexual images of the Claimant, as well as other digital images of her family and friends. These images were uploaded onto a free onlilne media hosting service. The Claimant contacted the hosting service and the images were removed in about August 2008. In about July 2008, the Claimant was contacted on Facebook by someone who threatened to expose her identity and post the images online if she did not add him as a friend on Facebook. Another attempt was made to blackmail her using her father's business public relations team. In November 2008, the images were uploaded to a Swedish website that hosted "BitTorrent" files with the Claimant's name attached to each.The claim in this case has been brought against "Persons Unknown". This was because until those persons who had downloaded the images had been identified by way of their IP Addresses, and their addresses had been obtained from their Internet Service Provider, they could not be made a party to these proceedings. The Claimant submitted that it would be more cost effective and less cumbersome if the class of persons who might have the files in their possession could be identified by a common characteristic, i.e. any person in possession or control of any part of parts of the relevant files containing the relevant digital photographic images.

Mr Justice Ramsey said that the term "harassment" was not defined in the 1997 Act, but section 7(2) stated that it included "alarming the person or causing the person distress".  On the current evidence, there had been conduct on at least two occasions; the conduct was targeted at the Claimant; it was calculated, in an objective sense, to cause alarm and distress; objectively judged it would be oppressive and unacceptable in the context in which it occurred and in my judgment would cross the line and be conduct which amounted to harassment, alarm or distress. Therefore this was a case where it was appropriate to grant an injunction.

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About the Author

Photograph of Malcolm Johnson

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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020 7814 5441

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