Legal remedies for pornography

Posted by Malcolm Johnson on

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The Sunday Times carried an article about claims made by women who had been photographed by their partners in sexual poses, who had then had their images posted on the internet by way of revenge, when the relationship broke up.

Easy access to digital cameras and the internet has now made this an increasing problem. However there are remedies.

One of these remedies is Section 1 of the Protection from Harassment Act 1997 which prohibits a person from pursuing a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. The test is an objective one: if a reasonable person would consider that the course of conduct amounted to harassment then the harasser ought to have known.

Harassment is not defined in the Act but section 7(2) states it will include alarming the person or causing that person distress. It may well be that the dissemination of indecent images will be covered here. The taking of an image, printing it, uploading and downloading are all separate acts which (we would submit) form a "course of conduct".

Section 3 of the Act provides for a civil remedy: damages may be awarded for (amongst other things) any anxiety caused by the harassment and any financial loss resulting from the harassment. Consequently proving a recognised psychiatric injury is not required for such a claim.

One case that illustrates the application of this Act is AMP v Persons Unknown [2011] EWHC 3454 (TCC). The Claimant's mobile phone was stolen. She had sexually explicit pictures of herself saved on her phone, for her boyfriend's exclusive use. She was alone in the images and her face was clearly visible. She was informed by strangers on Facebook that the photographs had appeared on a web site and that she had been tagged to the images by name. She managed to secure their prompt removal by the online media hosting service which operated the site.  She was however then threatened by a stranger that he would upload the photographs to a Swedish web site unless she added him on Facebook as a friend. She deleted his messages and blocked the sender.

There was some evidence too that her father's business was blackmailed over the release of these images. Four months later the images were uploaded to a Swedish web site, and had since been downloaded an unknown number of times by unknown people. As a result, if the Claimant's name was searched through online search engines, the images would be included in the search results. The Claimant sought an injunction to prevent the spreading of the images and their storage and transmission in the UK. An interim injunction was granted on the basis that this would prevent an actual or expected breach of the Protection from Harassment Act.

A criminal offence may also have been committed. Section 1 of the Malicious Communications Act 1998 makes it an offence to send an electronic message to a person, which is indecent or grossly offensive, if the purpose is to cause distress and anxiety to the recipient.

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About the Author

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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