Meeting of the Parliament 22 March 2016
Amendments 3 to 14 would expand the scope of the intimate images offence at section 2 to cover intimate sound recordings and intimate written communications.
As I set out in the Scottish Government’s response to the Justice Committee’s stage 1 report, and as I explained when the stage 2 amendments were debated, we decided to focus the offence on the sharing of intimate images as almost all the cases that we are aware of have involved the sharing of images. Unfortunately, we are all too aware that there are websites that have been set up specifically to enable people to post intimate photographs or films of their partners or ex-partners. I am not aware of similar websites where people can post voice messages or emails written by or to their partner or ex-partner.
The sharing of images that could enable a complete stranger to identify the victim is a betrayal of trust, and breach of privacy, that is especially likely to cause distress. That is part of the justification for the new offence. It is worth remembering that prosecutors will still be able to use existing laws on the sharing of written or recorded material by using, for example, the Communications Act 2003 offence or the offence of threatening or abusive behaviour, in appropriate cases.
The committee’s stage 1 report noted that a majority of the committee supported restricting the scope of the offence to photographs and films and that the committee was mindful of the risk of unintended consequences if the bill took too wide an approach in this area. On unintended consequences, we note that the amendments would apply not only to intimate recordings that had been written or spoken by the victim, but to those that were directed to or left for the victim. As I explained at stage 2, one perverse effect would be that
“a person could face criminal liability for publishing or disclosing a communication that they themselves had written, or a voicemail message that they had left.”—[Official Report, Justice Committee, 1 March 2016; c 33-34.]
It might be helpful if I gave a practical example of the unintended consequences that could result from the amendments, which could criminalise behaviour in the following circumstances. Two 13-year-olds exchange text messages about a celebrity. During the exchange, one of the teenagers indicates that they fancy the celebrity and would like to have sexual relations with them. The other teenager decides to share that text message with other people in their class.
In that situation, a communication has taken place that a reasonable person could consider to be sexual in nature and that a reasonable person would expect to be kept private. The teenager who shared the text has committed a criminal offence if it can be shown that they were reckless about whether sharing the message would cause the other person fear, alarm or distress. Although it would probably be embarrassing and potentially distressing for the person whose message has been shared, our view is that the teenager who has shared the message should not be considered to be committing an offence in those circumstances.