Online Safety Bill: Criminalising Cyber Flashing

As the government attempts to keep up with the growth of criminal behaviour online, an important Bill is being considered in Parliament. One of the aims within the Online Safety Bill is to criminalise Cyber flashing. The new legislation will make it an offence to send unsolicited sexual images to others including via Wi-Fi and peer to peer networks.

The Bill is currently at Report stage in Parliament for MPs to consider any further amendments. It is anticipated that it will be implemented later this year. It is intended that this offence will carry a custodial sentence similar to the existing sentence for upskirting which carries a maximum sentence of two years imprisonment. It could also lead to offenders being made subject to notification requirements and Sexual Harm Prevention Orders.

Statistics & Research

Unsolicited sexual images can be sent by peers or strangers. YouGov research from 2018 shows that one in five (19%)  received an unsolicited sexual photo from someone who was not a romantic partner, with this figure rising to 40% among women aged 18 to 34. The data also revealed that  whilst women were shown to be disproportionately affected 15% of British men had also received such a photo, rising to a quarter (26%) of those aged 18-34. Following this research by Professor Jessica Ringrose in 2020 found that 76 percent of girls aged 12-18 had been sent unsolicited nude images of boys or men. The Dating app Bumble’s own research suggests this figure could be higher, with nearly half (48%) of those aged 18 to 24 receiving a sexual photo they didn’t ask for in the last year alone.

Public Wi-Fi and file sharing services have led to offending in public areas and unsolicited images being sent electronically on public transport. In 2019 the British Transport Police recorded 66 reports of unsolicited photographs sent through means such as the file sharing service AirDrop, up from three in 2016.

Amendments to the current legislation

The Law Commission completed their final recommendations in July 2021 for amendments to the current legislation. They reported that current legislation required amending to include the sending of images or video recordings of genitals, sent via AirDrop. The current laws which directly address online communications under the Malicious Communications Act 1988 and the Communications Act 2003 were seen as overlapping, ambiguous and unclear for online users, technology companies and law enforcement agencies. They viewed some behaviours were not being specifically addressed by the communications offences, and that it was difficult to apply other existing criminal offences that were not created with the online world in mind. The Law Commission asserted that it was important to recognise the violation of a victim’s sexual autonomy without their consent and that the offence would require either that the defendant intends to cause alarm, distress or humiliation, or if the defendant is acting for a sexual purpose, the defendant is reckless as to whether the victim is caused alarm, distress or humiliation.

The current bill being debated would insert a new section within the Sexual Offences Act 2003 of sending a photograph or film of genitals.

The current Bill reads as follows:

 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.

(2) References to sending or giving such a photograph or film to another

person include, in particular—

(a)sending it to another person by any means, electronically or otherwise,

(b) showing it to another person, and

(c) placing it for a particular person to find.

(3) “Photograph” includes the negative as well as the positive version.

(4) “Film” means a moving image.

(5) References to a photograph or film also include—

(a) an image, whether made by computer graphics or in any other way, which appears to be a photograph or film,

(b) a copy of a photograph, film or image within paragraph (a), and

(c) data stored by any means which is capable of conversion into a photograph, film or image within paragraph (a).

(6) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding two years.

It is already a crime to send a malicious communication. The Online Safety Bill aims to particularise this offence to criminalise a particular type of sexual offending behaviour. This would be an either way matter which could lead to a maximum term on indictment of two years.

Should you require any advice in relation to a pending criminal investigation or court proceedings regarding online offences or offences of a sexual nature please do not hesitate to contact us on 0161 834 1515.