Not only can taking photographs or videos of someone without their permission lead to a prosecution in the criminal courts, it is now possible for victims to claim compensation through the civil courts.
Taking photographs or videos of someone without their knowledge and agreement can amount to the crime of voyeurism. This by itself can lead to a criminal conviction, prison and the requirement to register as a sex offender for several years.
However, it is now possible for victims to claim compensation through the civil courts. In the first case of its type (reported February 2023) the victim was awarded almost £100,000 after images of her naked body were uploaded to a website.
The images taken by the defendant were of his then girlfriend showering and cleaning the bathroom naked. Other images showed her in bed topless. There were no images involving any sexual activity.
You may be wondering why on earth can taking nude photo’s of your girlfriend and posting them to a website (where genitalia is not on show and there is no sexual activity) entitle her to claim almost £100,000 in compensation. Well, the court decided that taking an intimate photograph or video of someone (naked), even without any sexual activity, can in law amount to a sexual assault and sexual abuse. Consequently, compensation can be awarded for any psychiatric and psychological damage as a result of the photographs.
This, of course, has caused quite a stir not only in legal circles but also in the general media. It is now possible (in civil law) to sexually assault someone simply by taking a photograph of their nude body and showing it to someone else, causing distress to the person who’s body was photographed. There does not need to be any physical touching at all, and neither does there need to be any sexual activity.
This, at first sight, appears to conflict with the criminal law. In the present case, the defendant was convicted of voyeurism in the criminal courts, not sexual assault. As a result of this civil case it now appears possible that someone could be convicted (in the criminal courts) not only of voyeurism but also sexual assault and sexual abuse as a result of sharing an intimate photograph causing distress.
Voyeurism carries up to 2 years in prison, although many people, as in the current case, avoid prison altogether. However, sexual assault carries up to 10 years in prison and, subject to the length of prison sentence, a requirement to register as a sex offender for an indefinite period (potentially life). A much more serious offence.
It also appears that the court may be willing to award increasing amounts of compensation. In a previous case, the victim of a rape was awarded £93,000 (in today’s figures) for pain and suffering. In the present case the victim was awarded almost £100,000 because naked photographs of her in the bathroom, and of her topless in bed, were uploaded to a website causing her distress.
In the earlier rape case, the victim was clearly the subject of a physical and severe sexual assault. In the present case, is it correct to also regard the victim, who was not physically assaulted but who’s photograph was taken and uploaded to a website, as the victim of a sexual assault, and to receive more in compensation?
In other cases over recent years, victims have claimed compensation for various breaches of their private lives. These include:
- Accessing someone’s voicemails
- Writing about your sexual activity with someone
- Making secret recordings of intimate matters when in a romantic relationship
- Physical sexual assault including rape
- Sexual texting (sexting)
- Sending indecent images
Even where someone takes intimate photographs of themselves, such as nude ‘selfies’, and sends them to another person knowing the images will be used for sexual gratification, it can amount not only to a criminal offence for the receiving person to show them to someone else, but can result in substantial compensation being awarded against the person receiving and distributing the images.
It will be interesting to see how far the courts go to find a ‘sexual assault’. If a nude photograph shown to someone else, causing distress, can amount to a sexual assault, it would appear to follow that writing about someone sexually, forwarding sexual messages, forwarding intimate ‘selfies’, etc, could all amount to sexual assaults and sexual abuse.
Some of these offences may be committed on the spur of the moment following an argument or being ‘dumped’ by a girlfriend. This is, of course, no justification to break the law, but is it just that such a person then receives a conviction for sexual assault, goes to prison, has to register as a sex offender for many years and potentially loses their home and all their assets to pay compensation?
It is becoming increasing easy to claim compensation. In the present case the victim had to show:
- Intentionally exposing the victim to a foreseeable risk of severe distress resulting in injury
- Infringing on the victim's privacy
- Breaching the victim’s confidence (misusing private information)
In other words, if you post an intimate / nude photograph of a girlfriend (probably ex-girlfriend) knowing it is likely to cause her distress, this obviously infringes her privacy and is a misuse of her private information. Let’s face it, this is largely the whole reason why people post ‘revenge porn’ pictures and videos.
But you will note that the severe distress must also cause injury. So how easy is it for the victim to show an injury? Actually, very easy! This is where expert witnesses come into the equation.
In the current case the victim obtained, via solicitors, an expert report from a specialist psychiatrist. Such a report is based not only on the victim’s medical history, but also what the victim tells the expert during the consultation. You may, of course, take the view that any victim looking to claim substantial compensation will go into great detail about how badly they have been affected by the nude photograph.
Such an ‘injury’ may be evidenced by, for example:
- Sleepless nights
- Becoming more emotional / emotional breakdown
- Prescribed medication
- Having to report it to the police
- Going through a criminal court case (as the victim)
- Relationship breakdown
- Losing trust in others
- Financial loss
- Seeing a therapist / counsellor
- Mental stress / breakdown
- Suffering Post Traumatic Stress Disorder (PTSD)
- Chronic PTSD over several years leading to an enduring personality change
- Ongoing stress due to publication on photographs
- Ongoing treatment with psychiatrist
- Becoming a recluse
- Unable to work
- Unable to leave the house
- Paranoia
- Nightmares
- Removing oneself from social media
- Difficulty entering any new relationship
- Unable to make friends
- Relapse of any existing mental health condition attributable to the events in question
The court may also award ‘special damages’ for ongoing treatments costs, medical expenses, therapy costs, loss of job, loss of home, hotel accommodation, etc. The court may also award compensation to pay a private company to try and find the offending images on the internet and remove them. This can be an ongoing process as such images may initially be posted to one site but are then copied by others onto multiple sites. In the current case special damages amounted to over £37,000.
So what do you do if you are accused of taking photographs of another person? Firstly, seek advice from a specialist firm of solicitors. Solicitors will be able to help defend your position in any criminal proceedings as well as help you avoid a claim for compensation.
At PCD Solicitors we only deal with sexual defence work. We never charge for our initial advice and, if we are instructed by you, we can often undertake all our work on a fixed fee, meaning you will know at the outset what the cost will be, irrespective of how long it takes to resolve.
For a free initial consultation please contact Marcus Johnstone who is a senior solicitor. His email is: marcus@pcdsolicitors.co.uk. Please briefly explain your concern and provide your telephone number. Marcus will then call you back.
You can also text Marcus on 07808 553555 and he will call you back.
Our office number is 0151 705 8488. We represent clients throughout England and Wales.