Commentary on Sections Schedule 8: Disclosing private sexual photographs or films: providers of information society services Section 35: Meaning of “private” and “sexual”
362.Section 35 explains the meaning of “private” and “sexual” for the purposes of the offence created by section 33.
363.The effect of subsection (2) is to exclude from the ambit of the offence a photograph or film that shows something that is of a kind ordinarily seen in public. This means that a photograph or film of something sexual (such as people kissing) would not fall within the ambit of the offence if what was shown was the kind of thing that might ordinarily take place in public.
364.The effect of subsection (3)(a) is to provide that a disclosure of a photograph or film which shows all or part of an individual’s exposed genitals or pubic area would be considered sexual for the purposes of the offence in section 33.
365.Where a photograph or film does not show such an image it would still, by virtue of subsection (3)(b), be considered sexual if a reasonable person would regard it as such because what is shown is by its nature sexual.
366.Where what is shown is not by its nature sexual, subsection (3)(c) provides that a photograph or film is nevertheless to be considered sexual where a reasonable person would regard the content of the photograph or film when taken as a whole as sexual. For example, a photograph of someone wearing their underwear is not necessarily sexual, but a reasonable person might consider it to be so if the content of the picture, including for example what else was (or was not) shown or the manner in which the person was posing, would lead a reasonable person to consider it as such.
367.Subsections (4) and (5) set out the circumstances in which a photograph or film which contains content which is private or sexual is not to be considered private and sexual for the purposes of the offence created by section 33.
368.Those provisions apply (subsection (4)) where a photograph or film has been altered in any way (for example by manipulating a part of the image using a computer programme) or where the photograph or film combines a photographed or filmed image with either another such image (for example where two photographs have been spliced together) or another kind of image (for example where a photograph of individuals has been superimposed on a wholly computer generated picture).
369.An image of that kind is not private and sexual if:
	no part of the photograph or film in question originated from a photographed or filmed image that was itself private and sexual;
	the photograph or film is only private or sexual because the photographed or filmed element has been altered or combined with other material (for example, where a non-sexual photograph or film recording has been altered to make it private and sexual, or where it has been placed next to another image in a way which made the image as a whole appear to be private and sexual);
	the victim of the offence only appeared as part of, or with, whatever made the photograph or film private and sexual because the photograph or film in question has been created in one of the ways set out in paragraph 368 above (for example, where a non-sexual photograph of a person has been merged with a sexual photograph that did not originally feature that person).