Today, England and Wales has caught up with Scotland and many other jurisdictions that outlaw upskirting (the surreptitious photographing of an individual under their clothing) — the House of Lords approved the Voyeurism (Offences) Act 2018, initiated in response to a massive online campaign led by Gina Martin, who was upskirted at a music festival 18 months ago and decided to fight back.
We have represented many victims of upskirting and always found the English laws to hinder and obstruct more than help. Without a specific offense, victims of upskirting had to argue their case under voyeurism, outraging public decency or harassment offenses, none of which are well-suited to a typical victim’s experience.
Voyeurism applies to filming done in private only, while most upskirting happens in the public, be it on a train, in a shopping mall or in an office. Outraging public decency requires a person to witness the act while a claim for harassment under the Protection from Harassment Act 1997 requires at least two instances of unwelcome conduct to occur—upskirting by a random stranger is not likely to be repeated.
While this new law provides a novel, much simpler and tailor-made road for the police to criminally prosecute upskirting perpetrators, with a maximum penalty of two years in jail, it is not perfect. Like the revenge porn law passed in 2015, this Act does not introduce a civil cause of action to compensate the victims for the damage they have suffered—if the upskirting image or video is posted online, it can scar a person for life.