The law commission recently published its proposals, for a new set of intimate image offences. They looked at a variety of issues, including revenge porn, deepfakes and upskirting.
The report is lengthy, but I want to focus on one area, which is the possession of an intimate image, of a non consenting adult. The law commission carefully considered, if a possession offence should be created for these types of images and it decided against making possession an offence. (see pages 176-184)
https://www.lawcom.gov.uk/project/taking-making-and-sharing-intimate-images-without-consent/The reasons why the law commission decided against criminalising possession were very interesting. They acknowledged that there is huge demand for deepfake porn, but they did not even mention the possibility that viewing a deepfake image, could create demand for more deepfake images to be produced.
This is hugely significant, because the 'creating demand' argument is one of the most common justifications for making possession of iioc an offence. The fact that the law commission decided it was not even worthy of considering as a possibility, where other intimate images are possessed, shows that the law commission do not believe that possession creates demand. It is a deeply flawed argument, with no evidential basis.
On the second, most common reason given, for criminalising possession, which is that possession causes harm, to the person depicted in the image, the law commission was much clearer. They were adamant that possession does cause harm, although they were unable to say precisely how that harm is caused. But they also made it clear, that harm should not have to be proved in court, by the prosecution, because it was too "difficult" to prove.
Again, I find this remarkable. If possession causes so much harm, as they claim, then it should at least be possible for them to demonstrate that in a courtroom. Some of the people consulted by the report, claimed it was just "obvious" that harm is caused, and they used that as their justification, for it not having to be proven.
But the most remarkable part of the report, was the justification given for not making possession an offence, which is that it would be "unenforceable" due to a lack of "police resources". (page 182, para 4.276)
They say; "It is very finely balanced, but ultimately we conclude that even such a limited possession offence risks overcriminalisation and would be unwieldly to enforce."
They also noted: "when the enormous scale of intimate image abuse is considered, a further offence of mere possession of such images is likely to render these laws almost unenforceable in practice. Possession offences would require vast resources to police given the potential scale of the offending. We are concerned in particular that police who have to provide a proportionate response would ultimately be limited in practice (due to limited resources) to telling the person to delete the image they possess. The police would not reasonably be able to follow up to check whether the image was in fact deleted from every device and cloud account."
So what the law commission concluded, is that the police would not even bother to prosecute somebody, who was caught in possession. They would just say to the person; "delete the image and we will say no more about it".
Well, if that was the case, why do they do not do that with iioc?? The police obviously believe they do have the resources, not just to prosecute everybody in possession of iioc, but also to check the devices and cloud accounts of all of those individuals, for the next 10 or 15 years.
The law commission's conclusion is completely divorced from reality, in my view, but it does point the way for how possession of iioc ought to be dealt with in future. Instead of prosecuting for possession and destroying people's lives, they should just tell the person to delete the images and leave it there.