New Sexual Offences of “Deepfaking” and “Downblousing” Introduced

Reforms to protect victims of intimate image abuse, criminalising “downblousing” and sharing pornographic deepfakes without consent 

The Law Commission of England and Wales has recently proposed new recommendations to strengthen the law to protect victims of intimate image abuse.

The law reforms, published following a detailed review, would make it easier to prosecute those who take or share sexual, nude or other intimate images of people without their consent.

The Government asked the Commission to undertake a thorough review of the laws around intimate image abuse, following calls for them to go further to capture a wider range of harmful behaviours.

The proposed reforms would put in place a clearer legal framework, which would broaden the scope of intimate image offences, so that all instances of intentionally taking or sharing intimate images without consent are criminalised, regardless of motivation.

The Commission’s recommendations would also update the law to cover more modern forms of abuse that are currently not offences.

The Current Law and Reform Proposals

Under current law, acts such as “upskirting” or voyeurism are criminalised, but this would be extended further to cover the abusive act of “downblousing”, as well as the sharing of altered intimate images of people without their consent, including pornographic deepfakes and “nudified” images.

As well as extending and simplifying the law, under the reforms, all victims of abuse would receive lifetime anonymity. Widening these important protections would help empower victims to report and support prosecutions. Currently, only victims of voyeurism and upskirting are automatically eligible for anonymity.

The recommended reforms would bring in a “base” offence for intimate image abuse, supplemented by three additional offences for more serious conduct and a further offence for installing equipment:

• A new base offence: It would be an offence for someone to intentionally take or share an intimate image of a person if they do not consent and the perpetrator does not reasonably believe that they consent.
• This base offence would apply regardless of the perpetrator’s motivation. Current intimate image offences are restricted to one or two narrow motivations: to cause humiliation, alarm or distress to the victim or to obtain sexual gratification. This would be widened to include all motivations, such as sharing intimate images for financial gain, social status or as a joke, or where there is no motivation at all. This offence could lead to a maximum sentence of six months’ imprisonment.
• Three additional offences for more serious conduct: where the perpetrator has taken or shared an intimate image without consent with the motivation either to obtain sexual gratification, or to cause humiliation, alarm or distress, or where the perpetrator has threatened to share an intimate image. These offences could lead to a sentence of two to three years’ imprisonment.
• An offence for installing equipment: it would be an offence to install equipment such as a hidden camera, in order to take an intimate image of a person without their consent.

All victims would also be eligible for special measures to support them giving evidence in a trial – for example, by giving evidence behind a screen, by video link or through pre-recorded evidence.

All the offences in the new framework would cover the same range of images; images that are nude, partially nude, of a sexual act or of toileting. Currently, for some intimate images it is an offence to take them but not to share them, and vice versa.

Is there really a problem to be addressed?

The increased use of smartphones and online platforms has made it easier to take photographs or film, alter or create images and send images to our family and friends or the public at large.

However, this also means that it is now easier to take or make images of others or to distribute images of others without their consent (whether the images were taken consensually or non-consensually in the first place).

This is particularly concerning when those images are “intimate” in nature, such as where the person is naked, engaging in a sexual act or when the image is taken up a person’s skirt or down a female’s blouse.

The non-consensual taking and sharing of intimate images can have a significant and long-lasting impact on victims. The harms they experience are serious and significant.

These can include psychological harm such as anxiety, depression and post-traumatic stress disorder (PTSD), worsening physical health and financial harm – either through time off work or through withdrawing from online spaces which reduces access to networking opportunities.

In some cases, there have been reports of attempted suicide and self-harm.

The Limitations of the Current Law

Currently, there is no single criminal offence in England and Wales that governs the taking, making and sharing of intimate images without consent.

Instead, we have a patchwork of offences that have developed over time, most of which existed before the rise of the internet and use of smartphones.

Each offence has different definitions and fault requirements, and there are some behaviours that are left unaddressed.

The limitations and gaps in the current law include:

• Inconsistency over the type of intimate images that are covered. For example, upskirting is currently a criminal offence but downblousing is not. Sharing an altered image, such as a deepfake, is also not covered.
• Not all motivations for taking or sharing an image without consent are covered by the current offences. Whilst motivations such as sexual gratification and causing distress are covered (although not consistently), other motivations such as sharing the images as a joke or to coerce an individual are not covered at all.
• Ancillary provisions and special measures such as automatic anonymity for complainants are inconsistently available.

How We Can Help

If you have any questions or concerns about any sexual offences, such as these new offences mentioned or possession of indecent image offences or upskirting, please contact us on 0161 477 1121 or email us.