Jennifer Lawrence's nude photo leak is not a sex crime, however much she’d like it to be

This case highlights the difficulty of the law keeping up with online behaviour

Jeannie Mackie
Friday 10 October 2014 12:24
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Actress Jennifer Lawrence attends the 2014 Vanity Fair Oscar Party hosted by Graydon Carter in West Hollywood, California.
Actress Jennifer Lawrence attends the 2014 Vanity Fair Oscar Party hosted by Graydon Carter in West Hollywood, California.

Jennifer Lawrence has come out fighting this week, demanding that the theft and leaking of nude photos be reclassified as a sex crime. Her preferred defendants are the website which hosted the pictures, the people who put them there, and everyone who clicked and looked.

Having private naked pictures spread over the web certainly looks, and must feel, like an assault. But as it is her privacy which has been violated and not her person, assault charges would not suit. What does? The law, whilst fairly adaptive, struggles to keep pace with the malign evolution of cyberspace.

But it is clear on hacking: unauthorised access to computer material is an offence under S1 Computer Misuse Act 1990, punishable by up to two years imprisonment. 1990 was time immemorial in computer terms, and the Act was updated in 2006 to incorporate offences of unauthorised access with intent to commit another offence, punishable by up to five years. That would apply if, for example, the hacked photographs were then used to blackmail their subject.

Uploading the hacked data to another website where it can be readily accessed is a trickier area to police. Crime has its fashions like everything else, and malicious posting of explicit sexual material online is on the rise. Unless it is so grossly obscene that it is caught by the Obscene Publications Act, and a jury finds the material is such as to deprave and corrupt anyone seeing it, there isn’t any specific offence to punish such an act. That needs a very high standard of revoltingness, and while naked pictures like Lawrence's are obviously problematic, in terms of their content they don’t come anywhere near this category.

Threats to kill or harm online get caught by existing law, and Section 1 Malicious Communications Act 1988 and S27 of the Communications Act 2003 are used for trolling and Twittering misbehaviour, catching electronic communications which are grossly offensive, indecent obscene or false. It can stretch to pictures, but it is the material itself that must offend and not the fact it is being disseminated.

However, posting pictures of a person could come under harassment or stalking provisions. Those require that there is a course of conduct which under the Protection of Harassment Act 1997 means at least two incidents: stalking under S2a of the Act includes publishing any statement or other material relating to a person or coming from them. If the images were posted to two separate sites by the same person they could be charged accordingly.

Thousands of people saw the Jennifer Lawrence pictures. Are they criminally liable? Making, possessing and distributing indecent images of children is prohibited, but accessing pictures of naked adults even doing what adults do is perfectly lawful – unless caught by the offence of voyeurism.

Under S67 of the Sexual Offences Act 2003 watching or recording a person doing a private act, for sexual gratification, knowing the other person does not consent, is an imprisonable offence. A “private act” includes being nude or just wearing underwear in a private place. Would the offence stretch to cover Lawrence’s case? Probably not, as the section implies a live person being observed or recorded, not the viewing of the record made. And proving it was viewed for sexual gratification and not from vulgar curiosity would be tricky.

If there is no ready charge for such “sex crimes”, should new laws be made? Rushed legislation makes bad law, and the creaking criminal justice system cannot and ought not to police all possible human misconduct. And there is a remedy: understanding that the internet is not a fine and private place.

Jeannie Mackie is a criminal defence barrister at Doughty Street Chambers.

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