(Cyber)Flash A-Ah!

Unsolicited duck pic1

CW/TW: unsolicited sexual images

The Law Commission has published proposals to better protect victims from harmful online behaviour including abusive messages or emails, cyberflashing, and pile-on harassment.

Reforms to tackle the malicious sharing of information known to be false have also been proposed.

A new harm-based communications offence

The Law Commission is proposing to replace s127(1) Communications Act 2003, and the Malicious Communications Act 1998, with a new offence, based on the potential for harm.

The proposed new offence

The gist of the new offence being proposed is:

(1) The defendant sends or posts a communication that was likely to cause harm to a likely audience; (2) in sending or posting the communication, the defendant intended to harm, or was aware of a risk of harming, a likely audience; and (3) the defendant sends or posts the communication without reasonable excuse.

In terms of definitions:

  • a communication is a letter, electronic communication, or article of any description;
  • a likely audience is someone who, at the point at which the communication was sent or posted by the defendant, was likely to see, hear, or otherwise encounter it; and
  • harm is emotional or psychological harm, amounting to at least serious emotional distress.

Given the definition of "communication", the aim is for the offence to be technologically neutral, covering both "online" and "offline" communications.

It also covers "articles", so sending someone a pile of poo (for example) would, if the other conditions were met, also be caught by this.

It would expressly not replace s127(2) Communications Act 2003:

A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he— (a)sends by means of a public electronic communications network, a message that he knows to be false, (b)causes such a message to be sent; or (c)persistently makes use of a public electronic communications network.

However, the Law Commission is proposing separate reform of s127(2), in the form of:

  • an offence addressing knowingly false communications to complement the proposed harm-based offence; and
  • a specific offence addressing hoax calls to the emergency services.

England and Wales only?

This consultation applies to the law of England and Wales.

Because the proposed new offence is committed when someone "sends or posts" the problematic communication, it requires that the act of sending takes place in England or Wales.

If someone over the border sends such a communication, it is not brought without the scope of this legislation simply because the recipient is in England and Wales.

(This is a "place of origin" offence, not a "place of receipt" offence.)

The Law Commission is consulting on whether the offence should have extra-territorial effect but, given the approach set out in the consultation document, I wouldn't hold my breath on this.


Or, in common parlance, "dick pics".

These would, in the Law Commission's view, fall within the scope of the harm-based offence, provided the defendant intended or was aware of a risk of harm.

However, as the Law Commission's example 7 demonstrates, someone's conduct may not always meet that threshold:

Jack and Sonya are strangers riding in a quiet London Overground carriage, along with several other men but no other women. Jack finds Sonya very attractive and hopes that she finds him attractive, too. Using the AirDrop function on his iPhone, Jack discovers another iPhone within range called “Sonya’s phone”. Assuming correctly that the phone belongs to Sonya (the only woman in the carriage), Jack uses AirDrop to send to this phone a photograph of his erect penis (which he had previously taken and saved). A notification appears on Sonya’s phone with the text “Jack would like to share a photo” and a preview of the image, clearly depicting his penis. Sonya selects the option to “decline” the photograph. She doesn’t know which of the men in the carriage was the sender, but she can see Jack smiling at her. She is visibly frightened and gets off the train at the next stop. Jack is disappointed that his behaviour, which he saw as a sexual advance, caused this reaction from Sonya.

The Law Commission argues that Jack's behaviour would only "likely" be caught by the proposed new offence — the prosecution would need to prove that the dick pic was "likely to cause harm", and that Jack either intended to cause that harm, or else was aware of a risk of harming.

Personally, I'm more sceptical that this would fall within the scope of the proposed offence than the Law Commission, as I think that proving these two elements would be tricky.

Fortunately, the Law Commission notes that there is "a case for making cyber-flashing a specific sexual offence". The proposal is to amend s66 Sexual Offences Act 2003 — the existing "exposure" — offence to clarify that it covers digital exposure, whether live or otherwise.

Currently, s66 says:

A person commits an offence if—

(a)he intentionally exposes his genitals, and

(b)he intends that someone will see them and be caused alarm or distress.

Since this is an exposure offence, it is predicated on someone showing their own genitals. As such, even if the offence were expanded to cover "cyberflashing", it would relate only to someone sending a photo of their own genitals, and would not cover sending a photo of someone else's (e.g. sending someone pornograpy depicting third parties).

I have absolutely no idea why someone would send a photo of someone else's genitals, but then I have no idea why someone would send a non-consensual dick pic in the first place.

There is a potential lacuna here, with the risk that a photograph of someone else's genitals falls under neither the revised s66 offence, nor under the harm-based communications offence if the mens rea (the mental elements) of the offence are not met.

  1. This image is licensed under the Pexels licence↩︎