Is "revenge porn" illegal in Scotland?

I've never been convinced of the propriety of calling it "revenge porn", but the online publication of explicit images without their subjects’ consent has shot up the political agenda in recent months. 

The UK government is proposing new offences in the Criminal Justice and Courts Bill, bearing the maximum penalty of two years imprisonment. A number of other jurisdictions have already adopted new laws, criminalising the publication of such material. With characteristic disregard for the many jurisdictions of the United Kingdom, and their differences, broadcasters and media have been bandying about the idea that 'Revenge porn' illegal under new UK law - dumb to the fact that Chris Grayling's legislation will extend only to England and Wales. 

So what about Scotland, and folk in Scotland, who find compromising photographs or videos of themselves in intimate situations plastered across the internet, or distributed to their friends and acquaintances by a spiteful former parter? A case reported in the Scotsman this morning shows that the Procurator Fiscal may already have effective - if unexpected - legal tools to pursue and punish people who attempt to humiliate or punish people in this way. After the collapse of his relationship, twenty year old Robert McGinlay decided to use Facebook to share a sexually-explicit photograph of his former partner -- stubbornly refusing to take the image down, even after the complainer had "begged" him to do so. She phoned the police -- and now McGinlay finds himself fined and convicted of "threatening or abusive behaviour".

Holyrood brought in this new offence in 2010 in response to the erosion of the common law crime of breach of the peace by the appeals court. Under pressure from the European Convention, judges reckoned that this traditional offence was defined too broadly, and gradually knocked off its rough corners.  This included a new emphasis in the case law on breach of the peace having a necessarily public element.  Despite the fact that, a few years ago, breach charges made up a great part of what we might call domestic abuse offences in Scotland, the crime retreated from the privacy of the home, onto the streets and into the public domain. The parliament stepped in to fill that legal vacuum. Section 38 of the Criminal Justice and Licensing (Scotland) Act was the result. 

Like the common law crime it supplanted, "threatening or abusive" behaviour is an extremely broadly defined offence -- and it shouldn't be surprising to see prosecutors using it in a creative way to pursue people like McGinlay - whose behaviour was undoubtedly abusive, alarming, and wilfully intended to disturb his victim. A traditional breach of the peace it may not be, but I have no sympathy whatever with this cruel young man. 

In the aftermath of Charlie Hebdo atrocity, however, and the subsequent less than convincing hymns to free expression, we might reappraise the potential breadth of this new offence with a measure of anxiety. Under the Human Rights Act, courts are obliged to interpret and apply the criminal law having regard to your Article 10 rights to free expression -- but firing up social media throws up a lively cavalcade of "abusive" behaviour, capable of "alarming" the sensitively-constituted "reasonable person".  As always, we must keep a watch on the watchdog state, to ensure that the remedy isn't worse than the ill it was designed to cure.