New offenses, like upskirting and revenge porn, were already covered by Scottish legal concepts that date from ancient times, writes Jonathan Brown.
Under the Scottish legal concept of ‘iniuria’ ‘ which stems from ancient Roman law ‘ a legal remedy can be sought for an affront to a person’s dignity
‘Revenge porn’ has captured a lot of media attention in recent years – small wonder, as smartphones now allow anyone to create and share such content quickly and easily.
As with many matters connected to the rise of new technology, it is generally thought that the law needs to play catch-up and that Parliament must pass new laws to make sharing intimate images, without the consent of the subject, unlawful. Indeed, in 2016, the Scottish Parliament did so, by passing the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. Now, those convicted of the crime of “disclosing, or threatening to disclose, an intimate photograph or film” face anywhere between 12 months and five years in prison.
Disclosing, or threatening to disclose, intimate photographs or films was already essentially criminal prior to the 2016 Act. The legislation effectively serves to spell out the letter of the law, making it easier for the police and prosecutors to recognise, and work to stamp out, such conduct. The conduct itself was already illegal.
In addition to being criminal, the sharing of revenge-porn material also amounts to a clear civil wrong, meaning that victims of such conduct may sue the perpetrator in the civil courts. This possibility has received far less attention than the criminal dimension of revenge porn, which is unfortunate, since Scots law has long recognised the existence of a legal remedy that helps those affected by this and other similar wrongs.
Revenge porn, in almost all instances, can be said to amount to the delict (civil wrong) ‘iniuria’ and so anyone who is wronged by such may raise an ‘actio iniuriarum’ to obtain ‘solatium’ in respect of the harm that they have suffered. Iniuria, solatium and actio iniuriarum are, of course, Latin terms, betraying the Roman roots of these legal concepts.
