A new “Sexual Offences Bill” is making its way through the Scottish Parliament with new offences that could bite advertisers using flirting texts. Anna Montes reports.
Topic: Mobile marketing
Who: Law Commission of Scotland
When: June 2008
Law stated as at: 28 July 2008
A new "Sexual Offences Bill" is making its way through the Scottish Parliament. The Bill, introduced on 17 June 2008 and hailed as a radical revision of sex crime law in Scotland, is currently being considered by the Justice Committee.
So why should this Bill be relevant to marketers? Some of the new offences the Bill proposes could be broad enough in scope to capture some of the viral email and SMS campaigns we have seen used in recent months which involve "flirting" between members of the public. Sex has long been used in advertising, particularly with the teen and young adult marketplace, but with the introduction of this Bill, advertisers may need to ensure they know where the boundaries lie and that their UK campaigns do not cross that line as the potential penalties are not to be ignored.
The new offences that could bite advertisers:
Some of the offences introduced by the Bill which could be wide enough in scope to capture email and text campaigns with a "flirting" or "dating" flavour are:
(a) "Communicating indecently" – this offence occurs where a person either (i) intentionally sends a sexual written communication by whatever means to; or (ii) directs by whatever means a sexual verbal communiction at, another person, in circumstances where the recipient did not consent to the message being sent or directed in this way or where the sender did not have any reasonable belief that the recipient would consent to the message being so sent or directed.
(b) "Causing a person to see or hear an indecent communication" – a person is guilty of such an offence if they intentionally cause another to see or hear, by whatever means, a sexual communication or sexual verbal communication without their consent to receive such a communication or without having any reasonable belief that the recipient would consent to seeing or hearing the communication.
(c) "Coercing a person into looking at an image of a sexual activity" – this office will be committed where one person (A) intentionally causes another (B) to look at an image of either A engaging in a sexual activity or a third person or imaginary person engaging in such an activity. Again, as with the offences described above, this offence will be committed where B did not consent to receive such images or where A having no reasonable belief that B would consent to the receipt of such images.
So far as all three of these offences are concerned, the sender of the communication or image concerned needs to have sent the communication for the purpose of obtaining sexual gratification or to humiliate, distress or alarm the recipient. Furthermore, when a communication is being assessed in the light of these offences, a communication or an activity which is the subject of such a communication shall be considered to be sexual if a "reasonable person" would, in all the circumstances, consider it to be so.
Wide "communication" definition could catch virals
The offences of communicating indecently and causing a person to see or hear an indecent communication, require there to have been a written or verbal communication of some sort. The Bill defines a "written communication" as being a communication in whatever form which is very broad in remit and will potentially capture a wide range of marketing materials including text messages and emails.
So far as "verbal communications" are concerned, the Bill states that any communication in a verbal form will be caught including those communications which communicate the sounds of actual or simulated sexual activity and communications in sign language.
Regarding visual images, the proposed offence of coercing a person to look at an image of a sexual activity applies to an image produced "by whatever means" and it does not need to be a moving image. As the image does not need to be moving and it can involve an imaginery person, adult cartoons and other fictional images created for advertising purposes could also be caught.
The proposed penalties:
In the event that any campaigns would be considered to fall foul of any of these new offences, the penalties proposed are not to be sniffed at. Each of the offences referred to in this article would carry a penalty of up to 12 months imprisonment and/or a fine in the event of summary conviction or imprisonment for a term not exceeding 10 years and/or a fine for conviction on indictment. Marketers would be able to escape such penalities, however. if they were able to show that the intention behind the communication was not to cause humiliation, distress or alarm to the recipient which is a prerequisite for these offences.
Why this matters:
The new offences to be introduced by the Bill could be broad enough in scope to capture email, SMS and other campaigns that rely on sex to sell a product or which involve members of the public "flirting" with each other.
The broad remit of the Bill was intentional – the Scottish Law Commission has indicated that it wanted to make sure all forms of communication were covered by a single new law. Indeed, the Commission made it clear in press statements relating to the Bill that it has identified an increase in the sending of "offensive" e-mails and text messages and this is something that they therefore intend to tackle.
It will be up to the courts to decide which communications are serious enough to warrant the serious sanctions that the Bill might introduce, but advertisers should at least be aware that if this Bill becomes law, ill-advised flirting or joke messages involving sexual content used in Scotland could expose them to serious criminal penalties. Advertisers in Scotland and the rest of the UK should keep one eye on this Bill's development….