The government is told to criminalize ‘downblousing’ and the sharing of pornographic deepfakes

Sharing pornographic “downblouse” and “deepfake” images without consent should be considered a crime, according to recommendations to bring privacy image abuse laws into the smartphone age.

The Law Commission said a “mosaic” of criminal offenses has not kept pace with technology and is failing to protect all victims, while perpetrators evade justice.

It proposes the creation of a base crime, with a maximum of six months in prison, covering all acts of intentionally taking or sharing a sexual, nude or intimate photo or video without consent.

This would apply regardless of the motivation of the perpetrator, as the act is “sufficiently illicit and harmful to warrant criminalisation”.

The Revenge Porn Helpline previously told the PA News Agency that existing law is leaving “thousands of people without support and without validation” because they need to prove material was shared with the intent to cause distress.

The Legal Commission proposes other crimes, where the image was taken or shared for sexual gratification, to cause humiliation, alarm or distress, or where the perpetrator has threatened the victim, with more severe prison sentences of two to three years.

This “graded” approach is not intended to reflect the harm done to the victim, but rather the higher level of culpability when the perpetrator acts with a specific intent, the agency said.

Installing equipment, such as a hidden camera in Airbnb properties or bathrooms, to take a photograph or film someone without their consent would also be penalized, with maximum penalties in line with qualified proposals.

The new crimes would apply to victims and perpetrators of all ages and would cover images of being nude, partially nude, of a sexual act or going to the bathroom.

These include images taken from the top of a woman, known as downblousing, pornographic deepfakes, and images in which someone’s clothing has been digitally removed, making them appear nude, in addition to existing criminal offenses such as upskirting and voyeurism.

But it would exclude cases where the circumstances and nature of the conduct “are not morally unjust or harmful,” such as when a proud family member shares a nude or partially nude photo of a newborn baby on social media.

All victims of the new crimes would be eligible for anonymity for life and for special measures in case of trial, such as being able to testify behind a screen or pre-record their testimony.

The recommendations follow the Government-commissioned Legal Commission’s review of laws on the abuse of intimate image.

Professor Penney Lewis, Legal Commissioner for Criminal Law, said: “Current laws about taking or sharing nude or sexual images of someone without their consent are inconsistent, based on a narrow set of motivations and don’t go far enough to cover new disrupters and abusers. Behaviors born in the age of smartphones.

“Our new government reforms will expand the reach of criminal law to ensure that no perpetrator of these deeply damaging acts can evade prosecution and that victims receive effective protection.”

Emily Hunt, an activist and independent adviser to the Ministry of Justice (MoJ), said reforms around anonymity are “vital” as they will ensure greater protection for victims and encourage more people to come forward and report crimes.

A government spokesman said: “Nearly 1,000 abusers have been convicted since we banned ‘revenge porn’.

“With the online safety bill, we will force internet companies to better protect people from a variety of image-based abuses, including deepfakes.

“But we ask the Commission to explore whether the law could be further strengthened to keep the public safer.

“We will carefully consider their recommendations and respond in a timely manner.”

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