Protections in the justice system for women and girls

Background

It is currently a criminal offence to disclose, or threaten to disclose, an intimate photograph or film where this is done:

• for the purpose of causing fear, alarm or distress to the person(s) featured in the image

or

• the perpetrator is reckless as to whether doing so would be likely to cause them fear, alarm or distress

The intimate images offence exists to respond to behaviour that is cruel and degrading, and which can cause fear and alarm. It is behaviour often committed by men in abusive and manipulative ways to seek to control women and girls.

The offence covers both images that show a person in an intimate situation and images that appear to show a person in an intimate situation. It was approached in this way to cover images which have been digitally manipulated so as to appear to depict someone in an intimate situation, even though the original image does not.

Where such images are created using artificial intelligence (AI) software, they are often described as deepfake images.

This means it is an offence to disclose, or threaten to disclose, what is a deepfake image as long as the other requirements of the intimate images offence are met.

Context to the issue being raised

The UK Government recently legislated for a new offence of creating a purported intimate image (deepfake) of an adult without their consent and a new offence of requesting the creation of such an image. This is intended to avoid a situation where people could escape criminal liability by asking someone in a jurisdiction not covered by such laws to make the image for them (something that would be easy to do using the internet).

Neither of these new offences developed for England and Wales extend to Scotland.

Our view

The criminal law needs to adapt to the new ways in which forms of misogynistic abuse target women and girls.

Where technology advances, it should not be acceptable to use new tools to manipulate images to give an appearance of a person in an intimate state. This can cause great harm and, by focusing on the creation of such images rather than the disclosing or threating to disclose such images, this can help make clear how such behaviour is unacceptable as well as helping to reduce demand for tools that can be used to create such images (which may then go on to be shared).

We therefore propose introducing in Scotland a new creation offence and a new requesting the creation offence, similar to the offences recently introduced in England and Wales.

The exact and full details of how offences will be developed informed by views offered on the principle of whether to create new offences in this area. These further details will include any necessary defences and safeguards to the operation of the offences.