Chamber and committees

Disclosing or threatening to disclose sexually explicit 'deepfake' images, including by publishing them on the internet, is covered by the offence of 'disclosing or threatening to disclose an intimate image' at section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

The Scottish Government is aware that the UK Government has announced that it will amend the Criminal Justice Bill to criminalise the making of sexually explicit 'deepfake' images without consent. We will carefully consider the amendment.

Depending on the facts and circumstances of the particular case, there are a range of offences that may be used to prosecute cases where someone publishes, sells or distributes sexually explicit images of a person without their consent.

In particular, the offence of disclosing or threatening to disclose an intimate photograph or film at section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 can be used to prosecute such behaviour where the disclosure, or threat to disclose the image, would be likely to cause a person featured in the image to suffer fear, alarm or distress, and the accused either intended to cause such an effect or else was reckless as to whether their behaviour would be likely to have such an effect on the victim.

The offence provides that a person is in an 'intimate situation' if the person is engaging or participating in or present during an act which a reasonable person would consider to be a sexual act which is not of a kind ordinarily done in public, or the person's genitals, buttocks or breasts are exposed or covered only in underwear. Specifically, the offence provides that a photograph or film includes any material originally captured by photography or by making a recording of a moving image, whether or not it has been altered in any way. As such, the offence applies in respect of images that have been digitally manipulated so as to appear to depict a person as being in an intimate situation even if the original photograph does not do so.

Other offences which may be relevant include the offence of threatening or abusive behaviour at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and, where the images are published or shared via the internet, the offence of abuse of a public electronic communications network at section 127 of the Communications Act 2003.

As the legislation does not explicitly distinguish between manipulated and unmanipulated photographs or films, it is not possible to separately identify cases relating to the disclosure of so-called 'deepfake' images.

It is an independent operational matter for Police Scotland to enforce criminal law and it is an independent operational matter for Crown Office to make decisions in respect of prosecutions.

Regulation of the internet is a reserved matter falling to the UK Government and Parliament. Within that context, the Scottish Government engages with the UK Government and Ofcom, the new online safety regulator, on the implementation of the UK Government Online Safety Act in Scotland to address illegal and harmful material on the internet.

Decisions about operational policing priorities are a matter for Police Scotland, which is operationally independent of the Scottish Ministers. Where alleged criminal activity relating to intimate image abuse, including where this involves 'deepfakes', is reported to Police Scotland, they will investigate with a view to determining whether there is sufficient evidence to report to Crown Office for consideration of prosecution.

In 2023, Police Scotland undertook a 4-week online child sexual abuse and exploitation media campaign targeting sexual predators who groom and abuse children online, including through use of sexually explicit 'deepfake' images. Police Scotland's Cyberharm Prevention Team are also undertaking a National "sextortion" Prevention Campaign aimed at education and support for those affected by crimes of extortion, including people affected by "deepfake" images.

In terms of resources allocated to education and prevention, school pupils learn how to conduct online relationships safely and understand the risks and consequences of sharing intimate images. The Scottish Government's Gender-Based Violence in School Guidance makes clear that this includes non-consensual sharing of sexual images or threatening to do so.

The Scottish Government also funds Education Scotland to coordinate the Mentors in Violence Prevention programme, focussed on challenging attitudes underpinning gender-based violence, and supports schools to access Rape Crisis Scotland's National Sexual Violence Prevention programme.

Legislation criminalising the disclosure of intimate images includes photographs or films that have been digitally enhanced or manipulated. As such, the law covers 'deepfake' images that have been digitally manipulated so as to appear to depict the person to be in an intimate situation. It is an operational matter for Police Scotland to enforce relevant laws.

The Scottish Government has provided funding of £138,527.50 to the South West Grid for Learning over two and a half years to support the delivery of practical support for people affected by intimate image abuse via the Revenge Porn Helpline. This includes support to remove images from online platforms and signposting for emotional support. The funded activity includes work to raise awareness and understanding of intimate image abuse and the support available through the helpline in Scotland.

I have asked Teresa Medhurst, Chief Executive of the Scottish Prison Service (SPS), to respond. Her response is as follows:

Those individuals with an Order for Lifelong Restriction (OLR) have a risk management plan (RMP) that is approved by the Risk Management Authority (RMA).

Within this RMP there are strategies identify for intervention which aims to target and reduce risk factors associated with that individual’s offending/harmful behaviour. Where an offending behaviour programme is identified as being appropriate, individuals are placed on a national waiting list which prioritises individuals based on their critical dates.

I have asked Teresa Medhurst, Chief Executive of the Scottish Prison Service (SPS), to respond. Her response is as follows:

OLRs are subject to an annual review of their LSCMI risk assessment which is carried out by Prison Based Social Work (PBSW). In addition to this, each OLR has a Risk Management Plan (RMP), which is largely part of the risk assessment prepared for the courts and updated at significant points of change during their sentence.

In 2023 there were 40 RMPs revised for OLRs and 10 revised thus far in 2024. SPS currently do not hold data on the number of OLRs whose LSCMIs have been updated within the past year.

I have asked Teresa Medhurst, Chief Executive of the Scottish Prison Service (SPS), to respond. Her response is as follows:

The Order for Lifelong Restriction (OLR) figures are available publicly on the Risk Management Authority (RMA) website. The OLR sentences made in the last 5 years are as follows:

The Scottish Government has made a significant investment in residential rehabilitation services and associated aftercare as part of the £250 million investment into our National Mission to improve and save lives impacted by substance use. As part of this investment, we allocated a £5 million uplift in funding to Alcohol and Drug Partnerships (ADPs) across Scotland, to be spent on residential rehabilitation until the end of this parliament.

The Scottish Government has been clear that this funding must be distributed fairly, taking account of the many factors that influence the needs of particular areas and the costs of supplying local services. The ADP uplift, therefore, was and continues to be administered using the National Resource Allocation Formula, which is responsibility of the NHS Scotland Resource Allocation Committee (NRAC).

The NRAC formula remains the fairest method of distributing funding allocations across the country, and this was applied to the allocation for both East and South Ayrshire, taking into consideration the local requirements as appropriate.

Public Health Scotland published their interim Evaluation of the Scottish Government Residential Rehabilitation programme in February, where the best available evidence put the average cost estimate of a publicly funded residential rehabilitation placement in Scotland at £11,000 per person (in the first six months of financial year 2023-2024).

Public Health Scotland (PHS) published a baseline report as part of their interim Evaluation of the Scottish Government Residential Rehabilitation programme in February, where the best available evidence suggested that referrals into residential rehabilitation have been increasing not only in East and South Ayrshire, but across the country since the beginning of the Scottish Government’s National Mission to improve and save lives impacted by substance use.

According to another recent PHS report, the upward trend in placements suggests that the Scottish Government is on track to hit its target of 1,000 people publicly funded to go to rehab by 2026.

The Scottish Government is finalising plans to provide more funding to facilitate this increase in areas where it is most needed. Further details on this will be made available in due course.