The first person has been convicted of cyberflashing just weeks after the new provisions came into force as part of the Online Safety Act 2023 (the "Act"). Nicholas Hawkes, who had already been given a community order and was a registered sex offender for sexual activity, admitted to two counts of cyberflashing, was remanded in custody and is due to be sentenced for the offences, as well as breaching his community order on 11 March 2024.
Since 31 January 2024, under the Act, it has been an offence to send a photograph or film of genitals to another person with the intention to cause alarm, distress or humiliation, or for the purpose of obtaining sexual gratification (Section 287, to be inserted as Section 66A into the Sexual Offences Act 2003). This includes sending by any electronic means, showing it to another person or placing it for another person to find. Cyberflashing, which is particularly prevalent on dating apps, AirDrop and other platforms, is an either way offence and is punishable by up to two years in jail.
The Act, heralded by the Government as being "world-leading", was brought in to "make the UK the safest place in the world to be online." While it gained Royal Assent on 26 October 2023, with some parts already in force, other parts are set to do so over the coming months in line with Ofcom's roadmap to regulation. In addition to the regulatory duties placed on service providers and social media platforms, the Act has created a host of new offences which are designed to "apply directly to the individuals sending threatening or menacing messages and bring justice directly to them".
As well as cyberflashing, these offences include:
- "revenge porn" (also known as image-based sexual abuse), in criminalising the sharing of, or threatening to share, an intimate photograph or film;
- "epilepsy-trolling", i.e. sending or showing flashing images electronically;
- sending threatening messages;
- sending fake news that aims to cause non-trivial physical or psychological harm; and
- encouraging or assisting serious self-harm.
Under the Sexual Offences (Amendment) Act 1992, victims of cyberflashing and image-based abuse receive lifelong anonymity from the point at which the offence is reported.
Sefer Mani, from the East of England CPS, remarked that: “Cyberflashing is a grotesque crime and the fact we were able to deliver swift justice for the two victims shows the new law is working. Everyone should feel safe wherever they are and not be subjected to receiving unwanted sexual images."
Hawkes' swift conviction signals a clear effort to show that the Act will effectively punish individuals who deliberately target other individuals online.
More recently, Karn Statham has been convicted for sending several threatening and malicious messages to a woman and intimidating her with visits to her address multiple times, after being asked to leave her alone. The threats escalated on 16 February 2024 and continued over the weekend. Statham was sentenced to 34 weeks in prison, ordered to pay £200 compensation for damage caused, and given an 18-month restraining order.
We will continue to monitor the impact of the Act, and whether further convictions will follow. There remains concern that it will be difficult and distressing for victims to secure cyberflashing convictions given the requirement to prove specific intent, unlike in relation to sharing intimate images, where the law has been strengthened and there is no longer a need to prove intent to cause harm.
What next?
Ofcom has already started work on the three phases of implementation, which involves consulting on and publishing codes of practice and guidance in relation to illegal harms duties by Q4 2024 – Q1 2025. Phase 2 will address the Act’s children’s safety duties, which are focused on protecting children (under the age of 18) from harmful (but legal) content, including pornography and content relating to suicide, self-harm and eating disorders. Finally, phase 3 will focus on an additional set of heightened online safety duties relating to transparency reporting, user empowerment, fraudulent advertising, and user rights.
Keep up to date with developments on the Act at our Online Safety Act hub.