First conviction for cyber-flashing following introduction of new legislation

An individual yesterday (13^th February 2024) become the first person in England and Wales to be convicted of cyber-flashing.

Unsolicited photos of the defendant’s erect penis were sent by him to a 15-year-old girl and a woman on Friday. The victim took screenshots of the image on WhatsApp and reported the crime to Essex Police on the same day. The defendant pleaded guilty to the charges when he appeared before the Magistrates’ Court yesterday.

He is the first person to be convicted of the new offence of cyber-flashing brought in by the Online Safety Act 2023 which came into effect on 31 January. The defendant was remanded into custody and the case was adjourned for sentence to the 11^th March 2024 at Basildon Crown Court.

What is cyber-flashing?

Cyberflashing typically involves sending an unsolicited nude or sexual image (or video) to a recipient via social media or dating apps, but it can also take place via data sharing services such as Airdrop – something which is commonly seen on transport networks.

The Online Safety Act criminalised this behaviour by the introduction of new legislation which came into force on 31^st January 2024.

Those who send unwanted images or films of genitals, could face prosecution and find themselves on the Sex Offenders Register, fined or imprisoned for up to two years.

What is the law relating to cyber-flashing?

An offence of sending photographs or film of genitals (also known as cyber-flashing) was introduced under a new Section 66A of the Sexual Offences Act 2003 [as inserted by Section 187 of the Online Safety Act 2023].

This makes it an offence for a person to intentionally send or give a photograph or film of any person’s genitals to another person if they intend that the other person will see the genitals and be caused alarm, distress or humiliation or if they send the photograph or film for the purpose of obtaining sexual gratification and are reckless as to whether the recipient will be caused alarm, distress or humiliation.

Other offences created by the Online Safety Act 2023

The Online Safety Act 2023 came into force on the 31^st of January 2024.  Part 10 of such Act also created the following new communication offences:

• False communications offence
• Threatening communications offence
• Offences of sending or showing flashing images electronically
• Offences of encouraging or assisting serious self-harm

What needs to be proven for someone to be convicted of cyber-flashing?

The law requires a victim of cyber flashing to be alarmed, distressed, or humiliated upon receipt of the image (or film), or that the culprit hoped to receive sexual gratification and was  reckless as to whether the recipient will be caused alarm, distress or humiliation.

What is the sentence for cyber flashing?

If convicted of cyber-flashing a person is liable to a term of imprisonment not exceeding two years.

The offence is knowns as an ‘either way’ offence which means it could remain in the Magistrates’ Court or be dealt with in the Crown Court.

Will I become subject to the Sex Offenders Register if convicted of cyber-flashing?

Inclusion on the Sex Offenders Register (known as becoming subject to notification requirements) is not automatic for someone convicted of cyber-flashing.

If the person convicted is under 18 then they will become subject to notification requirements if they receive a sentence of at least 12 months. They would automatically become subject to notification requirements if the victim is under 18.

In any other case, the person convicted will become subject to notification requirements if they are sentenced to a term of imprisonment, detained in a hospital, or made the subject of a community sentence of at least 12 months.

Olliers Solicitors – specialist criminal defence lawyers

Article written by Ruth Peters. If you are facing an allegation involving cyber-flashing offence please contact our new enquiry team on 0161 834 1515 , email info@olliers.com or complete the web enquiry form below.