On 12 February 2024, a 39 year old man became the first person in England and Wales to be convicted of cyber-flashing. The Defendant was charged on two counts of sending a photograph or film of genitals to cause alarm, distress, or humiliation. The Court heard how he sent unsolicited photos of his erect penis to a 15-year-old girl and a woman; the latter took screenshots of the image on WhatsApp and reported Hawkes to Essex Police the same day.
The Defendant pleaded guilty and will be sentenced in mid-March.
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What is cyber-flashing?
Cyber-flashing typically involves a person sending an unsolicited sexual image to others via social media or dating apps. Images can also be sent via data-sharing services such as Bluetooth and Airdrop. In many cases, a preview of the photo can appear on a person’s device – meaning that even if the transfer is rejected, the person being sent the image has no choice but to view it.
When was cyber-flashing made a crime?
The Online Safety Act 2003 inserted section 66A into the Sexual Offences Act 2003. The then Lord Chancellor and Secretary of State for Justice, Dominic Raab, said at the time:
“Protecting women and girls is my top priority which is why we’re keeping sexual and violent offenders behind bars for longer, giving domestic abuse victims more time to report assaults and boosting funding for support services to £185m per year.
Making cyberflashing a specific crime is the latest step – sending a clear message to perpetrators that they will face jail time.”
Section 66A(1) reads:
66A Sending etc photograph or film of genitals
(1) A person (A) who intentionally sends or gives a photograph or film of any person’s genitals to another person (B) commits an offence if—
(a) A intends that B will see the genitals and be caused alarm, distress or humiliation, or
(b) A sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether B will be caused alarm, distress or humiliation.
Section 66A states that ‘sending’ is defined as distributing the image to another person by any means, including electronically. The image can be a copy of a photo or film or take the form of data that can be converted into a photograph or film.
Regarding the definition of ‘photograph’, the section includes photo negatives. ‘Film’ is defined as a moving image. Both ‘photograph’ and ‘film’ include:
- an image, whether made or altered by computer graphics or in any other way, which appears to be a photograph or film,
- a copy of a photograph, film or image, and
- data stored by any means which is capable of conversion into a photograph, film or image.
What is the sentence for cyber-flashing?
Cyber-flashing can be heard in the Magistrates’ Court or the Crown Court. If you are convicted in the former, you can be sentenced to up to six months’ imprisonment (or up to a total of 12 months if you are convicted of multiple offences. You can also receive a fine. The Crown Court can hand down a sentence of up to two years’ imprisonment.
Were any other criminal offences created by the Online Safety Act 2023?
Several new offences were created by the Online Safety Act 2023, including:
- Section 184 – It is now an offence to encourage or assist others in serious self-harm by sending them communication to that effect either in person or electronically. If convicted, you could face up to five years’ imprisonment.
- Section 179 – If you intentionally send ‘false communications’ that could cause “non-trivial psychological or physical harm” either in person or online, and it is reasonably foreseeable that the target of the communication is likely to see it, you can be charged with a criminal offence.
- Section 181 – Creates an offence of sending communications which threaten a person with death or serious harm.
- Section 183 – If you send an electronic communication that contains flashing images and it is reasonably foreseeable that a person with epilepsy will view it, you may be charged with a criminal offence.
- Section 188 – Inserts section 66B into the Sexual Offences Act 2003 which makes it an offence to intentionally share photos or film of another person in an intimate state without that person’s consent and in order to cause alarm, distress, or humiliation.
The Digital Secretary at the time the Online Safety Bill was progressing through Parliament, Nadine Dorris, stated:
“This government said it would legislate to make the UK the safest place in the world to be online while enshrining free speech, and that’s exactly what we are going to do. Our world leading bill will protect children from online abuse and harms, protecting the most vulnerable from accessing harmful content, and ensuring there is no safe space for terrorists to hide online.
We are listening to MPs, charities and campaigners who have wanted us to strengthen the legislation, and today’s changes mean we will be able to bring the full weight of the law against those who use the internet as a weapon to ruin people’s lives and do so quicker and more effectively.”
Concluding comments
The new offences created by the Online Safety Act 2023, including cyber-flashing, are new territory for the police and the Crown Prosecution Service. There is wide scope for defending many of the offences, and the Online Safety Act 2023 itself provides exemptions. For example, regarding sending false communications, recognised news publishers are exempt from committing the offence, as are holders of a licence under the Broadcasting Act 1990 or 1996 and those who have a multiplex licence.
If you are being investigated or charged with an offence under the Online Safety Act 2023 or the Sexual Offences Act 2003, it is crucial to speak with an experienced Criminal Defence Solicitor immediately. They can swiftly examine any evidence against you and, following a conference to hear your side of the story, create a robust defence and ensure your best interests are protected.
If you are facing an investigation or prosecution in relation to cyber-flashing or another sexual or online offence, our specialist Criminal Law Barristers and Solicitors can help. For legal advice and representation, please contact us through our contact page here. Alternatively, you can phone 0333 240 7373, or email us at info@reeds.co.uk.
