“Lights. Camera. Action!” – Re Motion Picture Capital and standing for minority shareholders to bring unfair prejudice petitions
‘Sexting’ – the act of swapping indecent images via phone messages or social media – is a problem. Whilst the thought of your naked selfie being passed around your peers is abhorrent enough, for those under the age of 18 the threat of police involvement is far more worrying.
This issue came to the media light in July 2014 when a teenage school girl received a caution for texting a topless photo of herself to her boyfriend. The offence committed was distributing an indecent image of a child (a person under the age of 18) contrary to section 1 of the Protection of Children Act 1978, even though the child in question was herself and the distribution was to her boyfriend. In another case, a teenage boy was cautioned for committing the same offence when he sent his friend an intimate picture of himself as a joke.
The law says that once an individual reaches the age of 10 they are capable of committing (and thus being prosecuted for) a criminal offence. In terms of ‘sexting’ that means school students are at risk. The distinction between being able to sexually consent at the age of 16 and it being illegal to take, possess or distribute an indecent image of a person under 18 years old is important to note – it is all too often assumed that potential criminality ceases once 16 is reached. There are some defences available under the Protection of Children Act 1978, namely for those aged 16 or over who are married to the child/live with them as partners in an enduring relationship, or if they have a legitimate reason for distributing the image, however they are largely outdated in the modern age of sexual flirting.
The law recognises that ‘sexting’ does not always arise out of communications between willing participants. Pursuant to section 1 of the Malicious Communications Act 1988 a person can be prosecuted for sending unwanted sexually explicit photos so long as it can be shown that in doing so they intended to cause harm, distress or anxiety to the recipient. A cautionary note for those trying to woo potential lovers on Tinder.
Of course in each case, if it is decided that action is necessary, the police and CPS will consider whether in all the circumstances a caution is appropriate or if the seriousness of the offence requires a prosecution. However whilst a caution will plainly be viewed as the lesser of two evils, being spent as soon as it is given (under the Rehabilitation of Offenders Act 1974), individuals should be clear that it is still classified as a ‘conviction’ and will require disclosure on various DBS checks or visa applications. In the most serious of cases the potential for entry on the sex offenders’ register comes into play. Tarnishing your record at such a young age is obviously undesirable.
With the problem as pervasive as ever, making young people aware of these issues is increasingly essential. A failure to take heed potentially involves the unfortunate criminalisation of the young and provides fodder for wholly unpleasant revenge porn. Don’t turn that five-second Snapchat into a lifelong regret.
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