Why the law is struggling to keep up with technology…

And what this means for lawyers for issues like revenge porn

Machaela O’Brien,  Trainee Legal Executive at The Family Law Company shares her thoughts on why the law is struggling to keep up with technology, and how revenge porn has made this increasingly difficult for those in the profession.

Since the earliest days of the web, mobile phones and social media, family lawyers have had to deal with layer upon layer of complication. Technology is constantly evolving – there’s nothing new about the law being unable to keep up. It takes time to make changes to the law and often technology has already moved on.

Most recently there’s been a shocking rise in revenge porn, a form of abuse often used by a perpetrator of domestic abuse as a means to punish or shame an ex-partner. Distribution can be via any method of sharing such as online via social media, websites, email, text or messaging apps, or physical copies such as photographs.

A study carried out by Refuge Charity found that one in seven women have received threats of intimate images or videos being shared without their consent. Chillingly, during the first lockdown, there was a 22 percent increase from the previous year in reports relating to revenge porn made to a Government funded helpline.

Highlighted in the news, two Love Island contestants claim to have been victims; Zara McDermott alleges that a former partner shared private intimate photos on WhatsApp groups, whilst Georgia Harrison claims that a previous partner made a sex tape without her knowledge or permission and posted this online on the private Only Fans website then circulated it more publicly on WhatsApp. Georgia’s partner was arrested for disclosing private sexual images before being bailed.

Can you deal with such cases effectively?

While the law appears to be several steps behind technology, it is important that clients experiencing this type of abuse report it to the police as soon as possible. A record should be kept of what has been posted online using screenshots, for example. This will help provide evidence when reporting the activity to a social media platform or website.

However, social media platforms are notoriously slow to react in taking images down, or simply don’t have the ability to access encrypted content; once something is shared to a WhatsApp group it is impossible for WhatsApp to get that content back.

Part IV of the Family Law Act 1996 enables victims of any form of domestic abuse (provided certain criteria is met) to apply for a Non Molestation Order to protect them from further abuse. This in certain circumstances, could include preventing a perpetrator from sharing or making threats to share private images or videos.

Threat to distribute

While the actual distribution of private images/videos is a specific criminal offence, making a threat to share them is not – at least not yet. In March this year, the House of Lords accepted an amendment to the Domestic Abuse Bill to make a threat to share private images/videos a criminal specific offence in the same way as distribution.

Of course, the law, whilst not specifically, does already recognise the reality of a threat.

Threats can be a means of coercive control, placing fear or shame on a victim to control them. Coercive control is an offence under Section 76 of the Serious Crime Act 2015 and is defined as an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim.

In addition, it is an offence to send any public electronic communications network a message or other content that is grossly offensive or indecent, obscene or menacing under the Communications Act of 2003. And under the Malicious Communications Act of 1998 it is an offence to send letters etc with intent to cause distress or anxiety – including by threatening to do this.

Will the latest amendment to the Domestic Abuse Bill make a difference?

The topic is not new, and the amendment to the Domestic Abuse Bill is without a doubt a step in the right direction. Domestic abuse can occur in so many ways, and there are currently numerous loopholes for perpetrators of abuse to avoid punishment – but this amendment goes some way towards closing at least one.

It is critical that the Government gets it right to ensure it covers all angles of abuse victims face and with technology changing so quickly, there may always be some new way round the law. There’s been lots of reference to businesses ‘pivoting’ during the pandemic. Ultimately should there be a way for the law to be able to pivot and respond more quickly to technology, or will it always be one step behind?