Can someone help me understand the Sex Offences Act Section 67?

[TatianaLarina]

Is it illegal to record someone in a private act, regardless of whether they are doing it for sexual gratification?

Or does it have to be for sexual gratification for it to be an offence?

It says:

(3) A person commits an offence if–

(a) he records another person (B) doing a private act

(b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and

(c) he knows that B does not consent to his recording the act with that intention.

So is (a) an offence on its own, or does it have to be in conjunction with (b) and (c)?

Many thanks

In each numbered clause all the subclauses must be met for it to be an offence. So clause 3 requires a, b and c - a on its own is not an offence. If the person recording someone else is not doing it for sexual gratification of themselves or another person they are not guilty of voyeurism, although they may be guilty of other offences.

Thanks for your reply.

What other offences would they be guilty of if not voyeurism for recording someone without consent?

And - how would you prove that the motive was sexual gratification?

How does that work in court?

What other offences would they be guilty of if not voyeurism for recording someone without consent

It depends on the circumstances. Invading someone's privacy isn't an offence. However, depending on the facts of the case it may be harassment, it may be a breach of data protection, etc.

how would you prove that the motive was sexual gratification

It would be inferred from the situation. If you operate a hotel, have a CCTV system recording the public areas and a couple choose to have sex in front of a camera you have not committed an offence. However, if you set up hidden cameras in the rooms so that you can record what people are doing in private you would struggle to convince a jury that there was any doubt about your motives.

Has something happened that is leading you to ask these questions or is this just intellectual curiosity?

No, it hasn't, I should have made that clear.

I was given the hypothetical scenario of a man who films himself having sex without a woman's knowledge or consent to 'protect' himself from an allegation of rape.

Is the filming without consent itself an offence? If the motive was not sexual gratification? (Assuming you could convince anyone).

I realised the law was unclear to me and I think it's an important point.

I guess I want to know whether if you could convince anyone that the motive was not gratification whether filmed sex without consent is always illegal or whether it has to meet the criteria of being for gratification to be illegal.

It is not voyeurism unless the motive is sexual gratification. However, under the Data Protection Act it is illegal to use a hidden camera when the person/people being filmed would have a reasonable expectation of privacy.

Data protection only covers governments and companies etc not members of the public.

These are very suspect questions from a suspect username "tatiANALarina"

Data protection only covers governments and companies etc not members of the public

Rubbish. It applies to everyone. There are significant exemptions for private individuals processing data purely for domestic use but they are not entirely exempt.

You're thinking of FOI Manclife.

Okay, I'll put it another way. Covert filming by a member of the public, for non-commercial reasons, does not breach the DPA. So I could film you on the street without you knowing and without your consent then upload it to YouTube without an issue. If I used later used that footage for say a charity event or for advertising I'd need your permission.

Thanks Bridge. What about in private MancLife?

Not sure what your point is hostage? Tatiana is a character from Eugene Onegin.

Same applies in private. However if what's happening in private is a 'private act' then one of the points to prove at court is complete. So, you set up a hidden camera in your house and upload footage of a plumber doing a shoddy job. No issues. You using the camera to film a sexual encounter without the other person knowing then that starts to be an issue. Though it depends on what you intend to do with the footage.

I'm afraid MancLife is wrong.

If you film someone in public you generally do not need their permission to use the footage for promotion or any other purpose. It is good practice to get their permission (and I would recommend that people do so as the law in this area has not been fully tested) but most lawyers specialising in data protection believe you are not breaking any laws if you don't.

Filming on your own property is usually exempt provided the footage only covers your own property. If any area that is not your property can be seen on the footage it is covered by the DPA. However, filming someone secretly in the circumstances described by the OP may fall foul of several legal provisions. Depending on the use made of the footage it may indeed fall foul of Data Protection. It may also constitute harassment and be a breach of other, more obscure, enactments.

However, the reality is that if someone covertly films themselves having sex with someone else they are likely to be convicted of voyeurism. They will have great difficulty persuading a jury that they are not filming for sexual gratification.

Hang on. That's pretty much what I said. Which part of what I said was wrong?

That's really helpful bridge. And very interesting.