What are the new offences relating to Revenge Porn and Cyberflashing?

A number of new offences came into effect earlier this year which relate to illegal sexual behaviour online.  Some of the new offences relate to behaviour that the criminal law was simply unable to tackle previously, such as Cyberflashing.  In other areas, such as that relating to Revenge Porn, the criminal law has been broadened in order to capture offending that was otherwise outside the reach of the police and Crown Prosecution Service (CPS).

What is Cyberflashing?

The act of “Cyberflashing” usually involves sending unsolicited or unwanted sexual or intimate images to someone else via social media or by sending such images to strangers via Bluetooth or Airdrop.

The Online Safety Act 2023 inserts the new offence of Cyberflashing into the Sexual Offences Act 2003 (SOA 2003).  The new s66 SOA 2003 makes it an offence to intentionally send a photograph or film of any person’s genitals to another person if:

• The sender intends the other person will see the genitals and be caused alarm, distress or humiliation, or
• The sender sends the image for the purposes of their own sexual gratification and is reckless as to the other person’s reaction.

The offence includes the sending of an image by any electronic means but also physically giving or showing someone a photograph or leaving an image for someone else to find.

The image may be entirely created by computer or “A.I.” but the sender will commit the offence if the image appears to be a genuine photograph or film.  So, an obvious cartoon image would not be caught by this law but an image which has been made or altered so that it looks real would be caught.

The purpose of this new law is to catch offenders who send unwanted sexual images to other people via social media or dating apps.  The use by offenders of Bluetooth or Airdrop, often on the transport network (trains, tube or buses), to send sexual images to unsuspecting victims nearby, is also clearly targeted by this new offence.

Anyone committing this offence will be liable to a maximum sentence of two years’ imprisonment.  They will also become subject to the Sex Offenders’ Register, even if they escape a prison sentence.

It is arguable that the sending of sexual images between friends, either as a joke or for some other reason, is not caught by this offence.  But it is difficult to see how the sending of a sexual image to a stranger would not amount to the offence.

The new Revenge Porn offences

A criminal offence, to tackle the sending of intimate images of another, had been in existence since 2015.  However, the original law had included a loophole through which many of those arrested or investigated had been able to climb.  Previously, it had been necessary for the police and CPS to prove that the sender had intended to cause distress to the person in the images.  The new offence is somewhat broader and can be committed without any such intent.

The new offence of “sharing and threatening to share intimate images” can be committed in the following ways:

• Basic Offence – The person depicted in the intimate image does not consent to the sharing of the image and the sharer of the image did not reasonably believe that they consented;
• Aggravated offence 1 – The sender shares the image without consent and with the intention of causing alarm, distress or humiliation to the person depicted;
• Aggravated offence 2 – The sender shares the image without consent and for their own or another person’s sexual gratification.

An entirely new offence of threatening to share an intimate image was also created.  This offence involves making a threat to share an intimate image of another person, either with an intention that the other person will fear that the threat will be carried out, or being reckless as to whether they will fear it.  This offence is also committed when the threat is made to someone who knows the person depicted in the intimate image.

What is the scope of the “threatening to share intimate images” offence?

In the case of a threat to share an intimate image, the prosecution does not have to prove that the image actually exists or that the image is in fact an intimate image.  It is the threat to share and the possibility that the other person will fear it will happen that creates the offence.

Arguably, this means that, where there has never been an intimate image or where it is impossible for the sender to have possession of such an image, it may be possible to argue that the threat was entirely empty and there was no risk of the other person believing it.  However, the sender would be taking a huge risk in this regard and the law has been framed so that making the threat has become the crime itself.

As a result, the making of a threat to your ex-partner’s best friend, that you’re going to share intimate images of your ex-partner, will amount to this offence – provided it can be shown that you were reckless as to whether the best friend would believe you or not.  This means that, even if the threat is entirely empty and you have no such intention, if you left the best friend with the impression that you would carry out the threat, you have committed the offence.  This will be so, even if you do not have possession of any intimate images of your ex-partner.  It is the threat itself that matters.

What is an Intimate image?

The new law defines an intimate image as a photograph or film which shows or appears to show another person in an intimate state, such as participating in an act which a reasonable person would consider to be a sexual act or doing something which a reasonable person would consider to be sexual.  It also specifically includes any image which shows all or part of a person’s exposed genitals, buttocks or breasts or a person in the act of going to the toilet.

The new law specifically excludes any image of an act which is of a kind ordinarily seen in public.  However, this exception in itself excludes the act of breastfeeding.  This means that the sharing of any image of a person breastfeeding or preparing to breastfeed or having just finished breastfeeding, will be caught by the offence.

Deepfakes and Downblousing is also caught

The definition of intimate images has been drafted deliberately widely so as to include images that have been manipulated or computerised, for example using AI. As such, so called deepfake images are criminalised for the first time.

A person is defined as being in an “intimate state” if all or part of their genitals, buttocks or breasts are depicted.  But the definition specifically extends to include these body parts when they are covered by underwear only or where they are obscured to the extent that underwear would usually cover.  In this way, photographs shared of a woman’s top and chest (known as downblousing) will also be caught by the new offences.

What are the penalties for the offences of sharing or threatening to share intimate images?

The basic offence, set out at paragraph (a) above, can only be tried in the Magistrates’ Court and is therefore subject to the maximum sentence of 6 months’ imprisonment.

The aggravated offences, set out at paragraphs (b) and (c) above, can be tried in the crown court and have a maximum sentence of two years’ imprisonment.

Anyone convicted of one of these offences will become liable to the notification requirements of the Sexual Offences Act 2003, which means they will need to comply with the Sex Offenders’ Register.

How can Old Bailey Solicitors help?

Anyone suspected of sending a sexual image to an unsuspecting recipient, or of sharing or threatening to share an intimate image of someone else, is likely to face police investigation.  They may be arrested and have their devices seized for examination or they may be invited to attend the police station for interview.

The consequences of a conviction for this type of offence may be far reaching – even if prison can be avoided, the requirement to comply with the Sex Offenders’ Register may have an impact on employment, travel and your ability to remain in contact with certain friends and family members.  As such, it is obviously imperative to obtain specialist legal advice at an early stage.  Whether you are about to be interviewed by the police or you have already been arrested and are now subject to bail, if you contact Old Bailey Solicitors, we will provide you with straight, non-judgemental advice, with a view to achieving the best possible outcome in your case.

Contact us on 0207 8464 999 or at [email protected] to arrange an appointment with one of our senior lawyers.