First jail sentence for cyberflashing in England: the start of new consequences for online abuse

A man has become the first person to be sent to jail for cyberflashing, under legislation that marks a turning point in how online abuse is dealt with.

Nicholas Hawkes, 39, was jailed for 66 weeks at Southend Crown Court after sending unsolicited photos of his erect penis to a woman and a 15-year-old girl via Whatsapp.

His sentence also included punishment for breaching an existing Community Order in relation to a previous sexual offence. He was made the subject of a restraining order for 10 years, and a Sexual Harm Prevention Order for 15 years.

Hawkes pleaded guilty to two counts of cyber-flashing contrary to section 66A of the Sexual Offences Act 2003. This is a new provision that was added after the new Online Safety Act was passed last year, making it illegal to send unsolicited photographs or films of genitalia to others.

The Online Safety Act came into force on 31 January 2024 and Hawkes is the first person to be convicted and sentenced under its provisions.

Prior to the passing of the Online Safety Act, people – disproportionately women and girls – had to put up with receiving unwanted photos of others’ genitalia as par for the course when using social media or dating apps, or even just sitting on public transport with Bluetooth switched on. This was despite the significant distress receiving such images can cause.

However the new Act makes the unsolicited sending of these images to others via any means – electronically or otherwise – illegal.

The Online Safety Act 2023 also heralded a watershed moment in addressing other types of online abuse. The Act created new offences for:

• Sharing intimate images or videos of a person without their consent, also known as ‘revenge porn’ (although this term is widely regarded as problematic, since it implies the victim is somehow to blame);
• Threatening to share images or videos of a person without their consent.

The creation of these offences was long-awaited. Sharing intimate images without consent has been a rapidly growing form of abuse in recent years. In the first nine months of 2023 alone, the Revenge Porn Helpline received reports from more than 10,000 people, a worrying rise of 31 per cent compared to the same period in 2022.

Although sharing intimate images without consent has been illegal since 2015 – and since 2021 it has also been illegal to threaten to share such images thanks to Refuge’s Naked Threat campaign – the previous law required proof that perpetrators intended to cause their victim distress. This was a huge barrier to prosecutions.

The Online Safety Act removes that requirement. Sharing intimate images without consent is itself an offence, punishable by up to a year in prison or a fine (or both).

Crucially too, the offence includes the non-consensual sharing of images which appear to show a person in an intimate state, meaning images or videos that have been digitally manipulated to look like someone else in so-called deepfakes.

This provision was urgently required to address a problem that has rapidly spiralled in recent years. Studies carried out in 2023 found that deepfake pornography makes up 98% of all deepfake videos online, with a 550% increase in the volume of deepfakes online from 2019 to 2023. As recently as two months ago, deep-faked explicit images of Taylor Swift were proliferated on the social media platforms 4chan and X (formerly Twitter).

Additionally, if a perpetrator shares or threatens to share intimate images for the purposes of sexual gratification or with an intent to cause the victim alarm, distress or humiliation, the Act treats these as even more serious offences which are punishable by up to two years in prison.

Like Nicholas Hawkes, perpetrators could also find themselves subject to a Sexual Harm Prevention Order or on the sex offenders register.

Another important development relates to anonymity for victims. Under the previous law, victims of ‘revenge porn’ were not automatically granted anonymity, unlike most victims of sex offences. This is because the crime was defined more as a communications offence rather than one that was strictly sexual.

The lack of automatic entitlement to anonymity posed a real barrier to people coming forward. However, a person who reports any of the offences covered by the Online Safety Act, including cyber-flashing and the non-consensual sharing of intimate images, has a lifelong right to anonymity.

Of course, there is still further work to be done to protect people from online abuse. One obvious gap in the current law is that creating deepfake images is not currently an offence. And, although the Online Safety Act does place more onerous duties on social media platforms to remove illegal content, it remains to be seen how effectively this will be enforced in practice. But there is no doubt that the Online Safety Act marks a new beginning for the prosecution of certain types of image-based abuse.

A successful criminal prosecution can also support a civil claim for compensation in relation to image-based abuse. Damages can potentially be claimed for the distress or psychiatric injuries caused, as well as any financial losses that have arisen as a result of the abuse (for example, the cost of getting the images taken down).

As a solicitor who has acted for both child and adult victims of online abuse, I know all too well how distressing it can be. Indeed researchers Kristen Zaleski and Jessica Klein have suggested survivors of image-based sexual abuse suffer similar symptoms to those who have experienced sexual assault.

Bolt Burdon Kemp is committed to supporting survivors who have been subjected to online and image-based abuse, having been the first law firm to have won a case in the High Court for compensation in relation to psychological harm from sexting. In that case the claimant was awarded £25,000 for the harm caused by the texting and images.

If you believe you have experienced online or image-based sexual abuse, you can contact me directly for free, no obligation advice about your legal options and whether you may be entitled to compensation.