STRAIN

Date: 2022-03-17

The Government has announced that a new offence of cyberflashing is to be introduced. The offence will be included in the Online Safety Bill as part of the Government’s efforts to ensure laws keep pace with emerging crimes.

What is cyberflashing?

Typically, cyberflashing involves a person sending an unsolicited sexual image via social media, dating apps, or via Bluetooth or Airdrop. The image can automatically appear on another person’s device, so they will see the image even if they reject the transfer.

The offence is to send a photo or film of a person’s genitals for the purpose of their own sexual gratification or to cause the victim humiliation, alarm or distress.

Prevalence

Professor Jessica Ringrose conducted research and found that 75.8% of girls aged between 12 and 18 had been sent unsolicited images from males. Many of the girls spoken to said that they would block and/or report adult men who sent unwanted images but found it much harder to deal with peers who sent them.

The Professor also highlighted the loophole with revenge porn amongst school-age students. There is a designated helpline for those over the age of 18, but under that age, the only recourse is to agencies who mostly deal with child sexual abuse and taking down publicly posted images.

Why cyberflashing?

The new offence is said to follow similar actions to criminalise upskirting and breastfeeding voyeurism. The protection of women and girls is apparently Dominic Rabb’s top priority as Lord Chancellor and Secretary of State for Justice.

Penny Lewis, Criminal Law Commissioner, said that the online world had increased the scope for abuse and harm with a worrying rise in reports of cyberflashing. The offence will close existing loopholes in the law and will be treated as serious as in-person flashing.

Online Safety Bill

The Bill seeks to regulate social media and technology giants with a parliamentary report stating that what was illegal offline should be made illegal online.

The first draft of the Bill was published in May 2021 and placed a “duty of care” on social websites to remove harmful and illegal content and to protect children. It was largely left to the companies, however, to police themselves with oversight from Ofcom, the media regulator. The parliamentary report called for Ofcom to be given greater powers and to set explicit standards.

The Culture Secretary, Nadine Dorris, said that the Bill has been strengthened and improved since the first draft. She went on to say the intention is to make the online companies responsible for protecting children and tackling illegal content.

Other offences

Proposals from the Law Commission (in the review “Modernising Communications Offences), carried in the Bill, alongside cyberflashing include:

• A “genuinely threatening” communications offence to better capture online threats to rape, kill, inflict violence or cause serious financial harm.
• A “harm-based” communications offence to capture communications sent to cause harm without a reasonable excuse. This offence will remove the proscribed categories such as “grossly offensive”, “obscene”, or “indecent”. Instead, the focus is on the intended psychological harm, to amount at least to serious distress, rather than proof the harm was caused.
• An offence for when a person sends a communication they know to be false with the intent to cause non-trivial emotional, psychological or physical harm. The offence would raise the current threshold of criminality of the existing offence in the Communications Act. The offence covers communications deliberately sent to cause harm rather than misinformation.

Priority offences

The Bill places a duty of care on internet companies to limit the spread of illegal content. It requires them to put systems in place to remove the content and to take additional proactive measures for priority forms of online illegal content.

Those listed in the draft bill were terrorism and child sexual abuse, and exploitation. The list of further priority offences to be written into the Bill has been developed using the following criteria:

• the risk of harm being caused to UK users by the content; and
• the severity of that harm

The offences will fall into the following categories:

• encouraging or assisting suicide
• offences relating to sexual images
• incitement to and threats of violence
• hate crime
• public order offences
• drug-related offences
• weapons/firearms offences
• fraud and financial crime
• money laundering
• controlling, causing or inciting prostitutes for gain
• organised immigration offences.

Penalties

The new offence of cyberflashing would carry a maximum of 2 years imprisonment. The harm-based offences would also carry two years; the false communication offence would carry 51 weeks and up to 5 years for the threatening communication offence.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact Rhys Tudur on 01758 455 500 or office@strainandco.co.uk

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