Abusive Behaviour and Sexual Harm (Scotland) Act 2016

Valid from 03/07/2017

Disclosure of an intimate photograph or film S

2 Disclosing, or threatening to disclose, an intimate photograph or film S

(1) A person (“A”) commits an offence if—

(a) A discloses, or threatens to disclose, a photograph or film which shows, or appears to show, another person (“B”) in an intimate situation,

(b) by doing so, A intends to cause B fear, alarm or distress or A is reckless as to whether B will be caused fear, alarm or distress, and

(c) the photograph or film has not previously been disclosed to the public at large, or any section of the public, by B or with B's consent.

(2) For the purposes of this section, a photograph or film is disclosed if it, or any data or other thing which is capable of being converted into it, is given, shown or made available to a person other than B.

(3) In proceedings for an offence under subsection (1), A has a defence if any of the following facts is established—

(a) B consented to the photograph or film being disclosed,

(b) A reasonably believed that B consented to the photograph or film being disclosed,

(c) A reasonably believed that disclosure of the photograph or film was necessary for the purposes of the prevention, detection, investigation or prosecution of crime, or

(d) A reasonably believed that disclosure of the photograph or film was in the public interest.

(4) For the purposes of subsection (3), consent to the photograph or film being disclosed may be—

(a) consent which is specific to the particular disclosure or (as the case may be) the particular threatened disclosure, or

(b) consent to disclosure generally where that consent covers the particular disclosure or (as the case may be) the particular threatened disclosure.

(5) In proceedings for an offence under subsection (1), A has a defence if the following matter is established—

(a) B was in the intimate situation shown in the photograph or film,

(b) B was not in the intimate situation as a result of a deliberate act of another person to which B did not agree, and

(c) when B was in the intimate situation—

(i) B was in a place to which members of the public had access (whether or not on payment of a fee), and

(ii) members of the public were present.

(6) For the purposes of subsection (3), a fact is established, and for the purposes of subsection (5), the matter is established, if—

(a) sufficient evidence is adduced to raise an issue as to whether that is the case, and

(b) the prosecution does not prove beyond reasonable doubt that it is not the case.

(7) A person who commits an offence under subsection (1) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).

3 Interpretation of section 2 S

(1) For the purposes of section 2, a person is in an “intimate situation” if—

(a) the person is engaging or participating in, or present during, an act which—

(i) a reasonable person would consider to be a sexual act, and

(ii) is not of a kind ordinarily done in public, or

(b) the person's genitals, buttocks or breasts are exposed or covered only with underwear.

(2) In section 2—

• “film” means a moving image in any form, whether or not the image has been altered in any way, that was originally captured by making a recording, on any medium, from which a moving image may be produced, and includes a copy of the image,

• “photograph” means a still image in any form, whether or not the image has been altered in any way, that was originally captured by photography, and includes a copy of the image.

4 Section 2: special provision in relation to providers of information society services S

Schedule 1 makes special provision in connection with the operation of section 2 in relation to persons providing information society services (as defined in paragraph 4(1) of that schedule).