Online Safety Act and Intimate Image-Based Abuse: A Step Forward for Justice, But A Victim-Centred Approach is Needed

Introduction

In January of this year, digitally altered — or otherwise known as ‘deepfake’ — pornographic images of Taylor Swift widely circulated X, a platform formerly called Twitter. Certain images received almost fifty million views within 24 hours before X finally removed them. The unfortunate incident launched the issue of intimate image-based abuse and online misogyny, a subject that has received significant media and political attention in recent years, into the spotlight once more. The massive circulation of ‘deepfake’ pornographic images of Taylor Swift, an American singer with international acclaim, happened just as the Online Safety Act began to take effect in the United Kingdom. Consistent with its name, the statute aims to make the Internet a safer place.1 The law contains a wide range of measures, including duties on internet platforms about having processes and systems to control harmful content on their websites.

This essay will focus specifically on the amendments criminalising intimate image-based abuse. This abuse refers to the sharing or the threat of sharing intimate images without the consent of the person in those images. Research demonstrates intimate image-based abuse disproportionately impacts women and girls, while also experiencing greater stigma and ‘slut shaming’.2 This type of abuse is often called ‘revenge porn’, but this paper will not use this term as it implies that the victim acted in a way to cause the abuse, assigning blame on the victim rather than the perpetrator.3

In June 2023, before the act became law, legislators announced plans to introduce image-based abuse amendments into the bill. The amendments sought to bridge gaps in previous legislation on the matter, specifically taking into account the Law Commission’s 2022 report, which outlined a need for such improvements. While a step forward in covering the loopholes that allowed predators to slip through the patchwork of previous legislation, this essay will examine how the Online Safety Act (‘OSA’) lacks a victim-centred approach.

Improvements: The Law Commission’s Report

Briefly, I will discuss the improvements the act made, which stem from the issues outlined in the Law Commission’s report. Firstly, it is important to note that each previous statute covered a certain type of abuse, including voyeurism4 and disclosing or threatening to disclose private sexual photographs with intent to cause distress.5 The recording of an image of genitals and buttocks underneath clothing otherwise known as 'upskirting’ was also covered.6 However, despite these laws, many perpetrators fell through the cracks due to loopholes found in this mismatch of legislation.7

The OSA aims to provide a more all-encompassing approach to the issue, eliminating many gaps outlined in the 2022 report. One notable improvement entails the widening of images covered. The OSA criminalises the sharing of intimate images involving a person’s exposed genitals (meaning full or partial exposure of genitals, buttocks, or breasts), a person in an act of urination, defecation, or carrying out an act of personal care in association with urination or defecation.8 The act inserts provisions into the Sexual Offences Act 2003, such as making ‘downblousing’ or taking nonconsensual images of breasts criminal, where it had not been previously.9 This includes images of digitally altered material, such as the ‘deepfakes’ in Taylor Swift’s case, which prior legislation did not cover.

Further, the OSA eliminates the motive loophole. Previously, although motivations such as receiving sexual gratification and causing distress are covered, other motivations like sharing the images for a laugh or to coerce an individual were not covered. The OSA introduces a base offence of sharing or threatening to share an intimate photograph or film with no proof of intent needed.10 More serious offences entail doing so with the intention to cause the victim humiliation, alarm, or distress as well as receive sexual gratification.11

Finally, with previous legislation, only victims of voyeurism and ‘upskirting’ were eligible for automatic anonymity.12 However, as a result of the OSA, new offences were inserted into the Sexual Offences Act 2003, entitling victims of the offences outlined above to automatic lifelong anonymity.13 The new offences, like voyeurism and ‘upskirting’ covered in the 2003 act, now also receive automatic anonymity under the Sexual Offences (Amendment) Act 1992.14 The impacts of anonymity will be further considered below. Overall, the OSA clearly marks a significant improvement to image-based abuse legislation. More abusive acts are criminalised. Hence, the act constitutes an enormous improvement through its widening of access to victims in pursuing justice.

A Victim-Centred Approach Needed

Still, receiving a criminal conviction against their perpetrators, is only one factor to supporting victims. Legislators should take care to support their mental well-being and emotional needs as well. Briefly, a victim-centric approach prioritises victims’ rights, expressed needs, choices, dignity, safety, and well-being. 15 This approach places importance on listening and preventing re-traumatization.16 The aim is to return as much control to victims as possible and establish compassionate and non-judgemental delivery of services to victims of abuse. In essence, stakeholders centre the needs of victims as much as possible. Unsurprisingly, one key step in ensuring a victim-centred piece of legislation entails listening to victims. My analysis of a victim-centred approach is based in the insights of feminist standpoint epistemology,17 which views victims as experts of their abuse. Likewise, legislators should adopt this approach when developing law. There is substantial research on the subject of image-based abuse that champions the voices of the abused.18

Lifelong Anonymity

Notably, the OSA did make a few major improvements from a victim-centred perspective, specifically in implementing the automatic lifelong anonymity for victims. This demand was a major win for survivors. Research on image-based abuse well documents victims’ demand for anonymity.19 Particularly, there are intense psychological effects of the justice system depriving them of anonymity, meaning the victim’s name can be published on the internet, on social media, and in newspapers.

As per the three-year research project of Rackley and others, one victim said that strangers knowing her identity and the nature of the abuse was worse than the intimate image-based abuse itself.20 The study interviewed 75 victims and 43 stakeholders across the UK, Australia, and New Zealand. Secondly, victims identified the absence of anonymity as a barrier to notifying police. In the same research article, another victim with the pseudonym Lucy said she would not report again, knowing there was no anonymity. She reflected on her past choice to report to the police: ‘Even if you could guarantee me that the police would be very sympathetic and take it seriously and investigate, I still wouldn’t do it because there’s no anonymity.’21 Still, while there are improvements like anonymity, a victim-centred approach is noticeably absent from the legislation in two key areas: training of justice system agents and the support of shame free education programs.

Training in the Justice System

Among victims, there is a distrust of workers in the justice system with many feeling unheard and blamed. As part of the aforementioned research project conducted by Rackley and others, a victim pseudonymously named Heather described her experience in reporting her abuse. A law enforcement officer told her ‘well I guess you’ve learnt your lesson.’22 Other victims in the same study recount feeling shamed after interacting with law enforcement, demonstrating a need for better training among agents in the justice system. Likewise, a survey-based study of 783 police officers and law enforcement staff in England and Wales revealed that the police have a limited understanding of intimate image-based abuse laws and are not confident in investigating cases and in responding to victims.23 The majority of survey participants reported that they had ‘some knowledge of revenge pornography but with significant gaps (39.5%) and 95 percent of police officers had received no training on the relevant legislation.24 This survey was conducted in 2017 prior to the OSA being implemented, but the findings remain relevant. A more recent 2023 study highlighted the need for increased training among police officers, specifically for frontline officers and call centre staff for larger Metropolitan forces, who are more likely to be undertrained in the area due to the size and workload of the force.25 Overall, stakeholders and some police officers, recommended training focused on better understanding the effects of intimate image-based abuse.26 More cognizance of its invasive life effects helps create officers who are empathetic and understand the need for victims to be listened to, even if they are limited in pursuing court action. Meeting victims with compassion can be instrumental to recovery. Currently, there is no provision in the legislation that provides for this increased training for law enforcement officers and call centre employees.

Entrenched Shame through Criminalisation as Children

Furthermore, victim voice focused research shows a need for changing the shame-filled narrative, which begins for many in their formative school years.27 Victims report feeling ‘degraded’, ‘ashamed, ‘disgusted’ with themselves, and ‘stupid’, which demonstrates the burden of gendered social expectations and ‘sexual scripts’.28 A need to change the social culture surrounding intimate image-based abuse is clear. A first step towards this challenge can be made through amending laws that criminalise children and promote victim blaming. Under the Protection of Children Act 1978,29 a child victim of intimate image-based abuse could face criminal charges for sending a nude photo of themselves, which is later non-consensually shared to others. The 1978 law fails to recognise the nuances of consensual youth-produced sexual images and ‘sexting’ (the sharing of sexual images or messages by mobile phone).30 The OSA has no provision for changing the law. However, amending legislation could make an immeasurable impact to both child victims in their pursuit of justice as well as future adult victims, who internalise this victim blaming discourse.

Correspondingly, a change in the law would bring on a wave of culture change, where young girls no longer hear in school assemblies a blame ridden framework surrounding intimate image-based abuse. More specifically, new law would trigger a revision of government guidelines and a different approach to how schools discuss ‘sexting’ and online abuse. The existing 2019 guidelines from the Department of Education provides that pupils should be taught ‘not to provide material to others that they would not want shared further.’31 This language centres the blame on the child for distributing the image, asking them to change their behaviour rather than the perpetrator. The guidelines continue: pupils should be made aware that sharing and viewing intimate images of a child is a criminal offense, even those created by the child themselves. The government recommendations reflect the unfortunate current state of the law. As seen in the wording in the guidelines for educators, the framework for approaching the topic of image-based abuse is steeped in shame, victim blaming, and criminalisation. Phippen and Bond argue that due to this early on shame-filled discourse, selfblame is entrenched into victims throughout their lives.32 As a consequence, adult victims commonly express that the abuse is their fault as they should not have sent the images.33 The OSA made no attempt to shift the narrative, leaving the current law — which criminalises children for their abuse — in effect.

Digital Citizenship and Online Abuse Education Programmes

A large gap in the OSA is its failure to make provisions to support educational programmes on the issues of digital citizenship and online abuse. Briefly, digital citizenship competency refers to the ‘knowledge, values, attitudes, and skills that all citizens require to exercise and defend their democratic rights and responsibilities in cyberspace.34 Rackley and others’ qualitative interviews with victims highlights the necessity for enhanced education on the impacts of digital image-based abuse to drive cultural change.35 One victim emphasized, ‘[The perpetrators are] sharing it because they think it’s a cool thing to do and not realise the effect that it actually has on the person, and I think if they were more aware … even if it was just one of them that changed their view’.36

GLITCH, a charity that works to end online abuse, called for the inclusion of better educational programmes as part of its written evidence submitted to Parliament before the Online Safety Bill became law.37 GLITCH’s representatives stated there is an urgent need for f inancial investment from government and tech companies in digital education and research programmes on online abuse.38 GLITCH pointed to the e-Safety Commission in Australia as a model, which is the world's first government agency committed to online safety, including image-based abuse.39 Along with producing research, the e-Safety Commission directs schools to teach online safety through their detailed educational workshops, videos, and activities.40 In stark contrast to the existing 2019 English guidelines, these Australian teaching resources on intimate image-based abuse do not teach children a prohibitive approach to sending nude photos amongst each other, rather they emphasise that the abuse is no fault of the victims. The programme also teaches key skills in digital literacy as well as individual rights and responsibilities online to avoid causing harm to others. In this fashion, the blame is shifted back to the perpetrator. Such initiatives have the potential to counteract the victim-shaming discourse perpetuated by the current law and educational guidelines.

There is no funding provision in the OSA to provide for empowering educational programmes or an e-Safety Commission akin to Australia’s. Alongside GLITCH, researchers at University College London, University of Kent, and more call for improved small group digital sex education workshops, and a divergence from the 2019 guidelines to a more victim-oriented approach.41

Conclusion

Intimate image-based abuse has been subject to significant research and public discussion in recent years. This type of abuse is incredibly important to protect against, specifically due to the enduring emotional and distressing impact on victims. Due to the long-lasting nature of the internet and the difficulty in removing images, survivors describe the impact as invasive into every aspect of their life, seemingly endless, and damaging to their physical autonomy.42 The Online Safety Act shows a step forward through implementing the changes outlined in the Law Commissions Report and eliminating legal loop holes that impeded justice.

But receiving justice is only one piece of the puzzle for a victim’s larger journey. There is a clear imperative for further legislation more attuned to a victim-centred approach that prioritises their mental health and wellbeing with a focus on listening and avoiding traumatisation. The extending of automatic anonymity under the OSA does mark a progressive step forward. However, other necessary victim focused measures like improved training for justice system workers are wanting. This step is especially crucial as law enforcement officers and call centre employees are on the frontlines hearing victims’ stories. In addition, victims generally report feeling shame and blamed for the abuse, signalling a need to shift the larger societal thinking and culture surrounding the issue. Changing the law to decriminalise child victims is essential. Such action would force a deviation from the victim blaming and prohibitive discourse currently taught to children and internalised into adulthood. Similarly, Parliament should provide for funding shame-free education programmes, taking inspiration from Australia’s eSafety Commission. In essence, there remains a pressing need for ongoing legislation action to better support victims interacting with the justice system as well as efforts to shift harmful social perspectives on image-based abuse.

Footnotes

1The Online Safety Act 2023.

2Jessica Ringrose and Kaitlyn Regehr and Betsy Milne, ‘Understanding and Combatting Youth Experiences of Image-Based Sexual Harassment and Abuse’ (2021) Department of Education, Practice and Society, UCL Institute of Education, 13.

3Cyber Civil Rights Initiative, ‘Frequently Asked Questions’ (CyberCivilRights.org, 2023), <https://cybercivilrights.org/faqs/#terminology> accessed 17 March 2024.

4The Sexual Offences Act 2003 (SOA 2003) s 67.

5The Criminal Justice and Courts Act 2015, s 33.

6SOA 2003, s 67(a).

7Law Commission Intimate image abuse: a final report (Law com 407, 2022) para 1.10.

8SOA 2003, s 66(d)(5).

9ibid.

10 OSA 2003, s 66(b)(1)

11 OSA 2003, s 66(b)(2), s 66(b)(3)

12 Law Commission (n 7) para 13.12.

13 OSA 2003, pt 3 s 16, pt 3 s 17.

14 Sexual Offences (Amendment) Act 1992, ss 1(1) and 2.

15 United Nations ‘Victims Rights First’ (un.org) < https://www.un.org/en/victims-rights-first> accessed 17 March 2024.

16 ibid.

17 Erika Rackley and others (2021) ‘Seeking Justice and Redress for Victim-Survivors of Image-Based Sexual Abuse’ 29 Feminist Legal Studies.

18 North Yorkshire Police, Fire & Crime Commissioner ‘Suffering in silence: image-based sexual abuse report 2018’ (NYP 2018); Clare McGlynn and others (2020) “‘It’s torture for the soul”: The harms of image-based sexual abuse’ 30 Social and Legal Studies; Rackley and others ‘Seeking Justice and Redress’ (n 17).

19 North Yorkshire Police, Fire & Crime Commissioner ‘Suffering in silence’ (n 18) 2, 9; Clare McGlynn and others ‘It’s torture for the soul’ (n 18).

20 Rackley and others ‘Seeking Justice and Redress’ (n 17).

21 ibid.

22 Rackley and others ‘Seeking Justice and Redress’ (n 17).

23 Emma Bond and Katie Tyrrell, ‘Understanding Revenge Pornography: A National Survey of Police Officers and Staff in England and Wales’ (2018) 36 Journal of Interpersonal Violence.

24 ibid.

25 Antoinette Raffaela Huber, ‘Image-based sexual abuse: Legislative and policing responses’ (2023) Criminology & Criminal Justice.

26 ibid.

27 Andy Phippen and Emma Bond, ‘Why do legislators keep failing victims in online harms?’ (2024) International Review of Law, Computers & Technology 10-18.

28 Clare McGlynn and others ‘It’s torture for the soul’ (n 18).

29 The Protection of Children Act 1978, s 1.

30 Jessica Ringrose and Kaitlyn Regehr and Betsy Milne ‘Understanding and Combatting Youth Experiences’ (n 2) 16.

31 Department for Education, ‘Relationships Education, Relationships and Sex Education (RSE) and Health Education’ (2019) 28.

32 Andy Phippen and Emma Bond, ‘Why do legislators keep failing?’ (n 27) 10-11.

33 ibid 11.

34 Council of Europe, ‘Digital Citizenship Education’ (coe.int, 2024) < https://www.coe.int/en/web/digitalcitizenship-education/target-groups> accessed 26 March 2024.

35 McGlynn and others, ‘Shattering Lives and Myths: A Report on Image-Based Sexual Abuse’ (Australian Research Council 2019) 15.

36 ibid.

37 Glitch, ‘Written evidence from Glitch’ (OSB0097) <https://committees.parliament.uk/writtenevidence/39245/pdf/> date accessed 26 March 2024.

38 ibid 6.

39 ibid 11.

40 eSafety Commissioner, 'eSafety Education’ (esafety.gov.au) <https://www.esafety.gov.au/educators> accessed 26 March 2024.

41 GLITCH, ‘Royal Assent of the Online Safety Act: What’s next?’ (glitchcharity.co.uk 2023) < https://glitchcharity.co.uk/royal-assent-of-the-online-safety-act-whats-next/> accessed 17 March 2024; Jessica Ringrose and Kaitlyn Regehr and Betsy Milne ‘Understanding and Combatting Youth Experiences’ (n 2) 59, 6263.