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Tuesday 13 February 2024

Cyberflashing: Sending Genital Images That Cause Alarm, Distress or Humiliation

An Essex man has become the first person in England and Wales convicted of the new offence of cyberflashing.

Cyberflashing is the thoroughly unpleasant act of sending a photograph or film of genitals, with the intention, or reckless outcome, of causing upset to the recipient. The legislation is written in such a way that the offence can be committed by sending electronic or physical images to recipient.

Today I thought I would take a whistle-stop tour of the new legislation.

Section 66A(1) of the Sexual Offences Act 2003, as introduced by section 187 of the Online Safety Act 2023, makes it an offence for a person (A) to intentionally send or give a photograph or film of any person's genitals to another person (B), 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.

Subsection (2) states that 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.

Subsection (3) defines "photograph" as including the negative and positive version of an image.

Subsection (4) defines "film" as a moving image.

Subsection (5) clarifies that references to a photograph or film also include:

(a) an image, whether made or altered 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).

Subsection (6) states that the maximum penalty on conviction of an offence under this section is 26 weeks' custody and/or an unlimited fine on summary conviction; 2 years' custody on conviction on indictment.

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