In an increasingly digital world, where our lives are intertwined with online platforms and social media networks, ensuring safety and security in the virtual realm has become paramount. Governments worldwide are continuously refining legislation to address the challenges posed by the digital landscape. One such significant step is the enactment of the Online Safety Act 2023, a comprehensive framework designed to protect users and combat harmful content online. The Act is far-reaching in scope, targeting both individuals and intermediaries.

On 31 January 2024, Part 10 of the Act came into force. This has created various new offences including sending communications and unwanted sexual images in response to emerging behaviours online.

New offences

Sending false Communications

Section 179 creates a criminal offence of sending false communications. A person is guilty of this offence if they:

  1. send a message;

  3. conveying information that they know to be false;
  4. at the time of sending it they intend the message to cause non-trivial psychological or physical harm to a likely audience (i.e. someone who is likely to read it, whether originally or after someone has shared it); and
  5. they have no reasonable excuse for sending the message

Section 180 creates an exemption to the offence for recognised news publishers and other various broadcasters. The offence also cannot be committed in connection with showing a film made for cinema to members of the public.

This offence can be committed by someone outside the UK, but only if they are habitually resident in England, Wales or Northern Ireland.

Someone guilty of this offence could be imprisoned for up to six months or receive a fine or both.

Sending Threatening Communications

Section 181 creates a criminal offence of sending threatening communications. A person is guilty of this offence if they:

  1. send a message;

  3. conveying a threat of death or serious harm (serious bodily injury, rape, assault by penetration or serious financial loss); and
  4. intend (or is reckless as to whether) someone encountering the message will fear that the threat will be carried out (whether by the sender or someone else)

With respect to threats of serious financial loss, it is a defence for a sender to show both that:

  1. the threat was used to reinforce a reasonable demand; and

  3. the person reasonably believed that the use of the threat was a proper means of reinforcing the demand.

This offence can be committed by someone outside the UK, but only if they are habitually resident in England, Wales or Northern Ireland.

Someone guilty of this offence could be imprisoned for up to five years or receive a fine or both.

Sending or Showing Flashing Images Electronically (Cyber-flashing)

Section 183 creates a criminal offence of sending or showing flashing images to people with epilepsy intending to cause them harm. “Harm” means a seizure, alarm or distress.

When sending the images, one of two conditions have to be met.

  1. At the time the communication is sent, it is reasonably foreseeable that an individual with epilepsy would be among the individuals who would view the communication, and the communication is sent with the intention that such an individual will suffer harm as a result of viewing the flashing images.
  2. When sending the communication, the person sending it believes that an individual whom the sender knows or suspects to be an individual with epilepsy will, or might, view it and intends that individual to suffer harm as a result of viewing the flashing images. Condition 2 is intended to capture the more targeted sending of flashing images to an individual who the sender knows, or suspects, has epilepsy.

When showing the images, someone will be guilty of the offence if they know or suspect that the individual concerned is an individual with epilepsy, intends that that individual will suffer harm as a result of viewing them, and if the person has no reasonable excuse for showing the images.

Section 180 creates an exemption to the offence for recognised news publishers and other various broadcasters. The offence also cannot be committed in connection with showing a film made for cinema to members of the public. A healthcare professional also cannot be guilty of this offence.

This offence can be committed by someone outside the UK, but only if they are habitually resident in England, Wales or Northern Ireland.

Someone guilty of this offence could be imprisoned for up to five years or receive a fine or both.

Encouraging or Assisting Serious Self-Harm

Section 184 creates an offence of encouraging or assisting serious self-harm.

Someone is guilty of this offence if:

  1. they do a relevant act capable of encouraging or assisting the serious self-harm of another person; and
  2. their act was intended to encourage or assist the serious self-harm of another person.

A “relevant act” includes in-person or electronic communications, publications, correspondence, and the sending or giving of items with stored electronic data.

“Serious self-harm” means self-harm amounting to the definition of grievous bodily harm as defined in the Offences Against the Person Act 1861. This can include harm by omission as well as a positive act, such as encouraging someone not to eat or drink or take their prescription medication as required.

The person referred to need not be a specific person or class of persons identifiable by the offender, so they could be guilty of an offence even if they may never know the identity of those who receive the communication. The offence can also be committed regardless of whether serious self-harm occurs. It is also irrelevant who created the content; it is the sending of the content that makes them guilty of the offence.

This offence can be committed by someone outside the UK, but only if they are habitually resident in England, Wales or Northern Ireland.

Someone guilty of this offence could be imprisoned for up to five years or receive a fine or both.

Sending etc Photograph or Film of Genitals

Section 187 creates a new offence of sending etc a photograph or film of a person’s genitals to another person. This is to be inserted as section 66A of the Sexual Offences Act 2003. A person (A) who intentionally sends or gives a photograph or film of any person’s genitals to another person (B) is guilty of an offence if:

  1. A intends that B will see the genitals and be caused alarm, distress or humiliation; or

  3. 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.

“Sending or giving” means sending to another person by any means, whether electronically or otherwise, showing it to another person and placing it for someone to find.

Someone guilty of this offence could be imprisoned for up to two years or receive a fine or both. They could also find themselves on the sex offenders’ register.

Sharing or Threatening to Share an Intimate Photograph or Film

Section 188 creates four new offences of sharing or threatening to share an intimate photograph or film. This is to be inserted as section 66B of the Sexual Offences Act 2003. These are as follows.

(1) A person (A) commits an offence if:

  • A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state;
  • B does not consent to the sharing of the photograph or film; and
  • A does not reasonably believe that B consents.

(2) A person (A) commits an offence if:

  • A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state;
  • A does so with the intention of causing B alarm, distress or humiliation; and
  • B does not consent to the sharing of the photograph or film.

(3) A person (A) commits an offence if:

  • A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state;
  • does so for the purpose of A or another person obtaining sexual gratifications,
  • does not consent to the sharing of the photograph or film; and
  • A does not reasonably believe that B consents.

(4) A person (A) commits an offence if:

  • A threatens to share a photograph or film which shows, or appears to show, another person (B) in an intimate state, and
  • A does so:
  • a. with the intention that B or another person who knows B will fear that the threat will be carried out; or
  • b. being reckless as to whether B or another person who knows B will fear that the threat will be carried out.

To be guilty of (4), it is not necessary that the photograph or film in the threat actually exists or contains B in an intimate state.

Someone guilty of offence (1) could be imprisoned for up to six months or receive a fine or both. Someone guilty of offences (2), (3) or (4) could be imprisoned for up to two years or receive a fine or both. They could also find themselves on the sex offenders’ register.

Exemptions

There are various exemptions to the above new offences, which will be inserted as section 66C of the Sexual Offences Act 2003. These are as follows.

  1. The photograph or film in question was taken in a place which the public, or a section of the public had access. To apply, B must have been voluntarily in the intimate state or the accused reasonably believed they were and B did not have a reasonable expectation of privacy against a photograph or film being taken.
  2. The photograph or film had previously been shared in public, or the person sharing it reasonably believed that it had been and B had consented or the person sharing had a reasonable belief of B’s consent.
  3. Where the photograph or film is of a child under 16 who lacks capacity to consent to the sharing (or the person reasonably believe the child lacks capacity to consent) and the photograph or film is shared for the purpose of the child’s care by a healthcare professional.
  4. Where the photograph or film is of a child which is of a kind normally shared between family and friends.
  5. It is not an offence to threaten to share an intimate photograph or film unless the act or sharing would constitute an offence in itself.

Existing Offences

Sections 179 and 181 widen the scope of the previous offences that were in force. Previously, section 179 was section 1(a)(iii) of the Malicious Communications Act 1988 and section 181 was section 1(a)(ii) of the Malicious Communications Act 1988. These offences have now been repealed with the introduction of the Online Safety Act 2023. A person was only guilty of an offence where they sent a false or threatening communication if they intended to cause anxiety or distress to the recipient or a likely audience. The intended consequences have now been significantly widened, to include physical harm as well. The “threat” required for the new section 181 offence is now also clearly defined. The maximum penalty for someone found guilty of either offence was previously one of two years’ imprisonment, whereas someone guilty of the section 179 offence could be imprisoned for up to six months and someone found guilty of the section 181 offence could be imprisoned for up to two years.

Section 179 also repeals section 127(2)(a) and (b) of the Communications Act 2003, which made it an offence for someone to send or cause a message to be sent by means of a public electronic communications network, a message the sender knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another. It therefore consolidates the previous offences and it is now much clearer when someone will be guilty of sending a false message.

Section 181 overlaps with the offence of sending a menacing communication under section 127(1)(a) of the Communications Act 2003. This is a lesser offence, as it can only be tried in the Magistrates’ Court (whereas the new offence can be tried in either the Magistrates’ or the Crown Court) and has a maximum sentence of only six months’ imprisonment and/or a fine. CPS guidance states that when deciding which offence to charge a suspect with, the focus should be on which offence reflects the seriousness of the offending behaviour and provides adequate powers of sentence. It may also be easier to prove the section 127 offence.

Section 181 also overlaps with the offence of threats to kill, contrary to section 16 of the Offences Against the Person Act 1861. Someone is guilty of that offence if without lawful excuse, they made a threat to kill intending to cause fear that the threat would be carried out. This is the more serious offence, as it carries a maximum sentence of ten years’ imprisonment. CPS guidance states that the more serious threats to kill offence should only be charged where it is necessary to do so to reflect the seriousness of the offending and provide the Court with adequate powers of sentence. The new offence however also captures threats where the recipient fears that someone other than the sender may carry out the threat, which is not covered by the existing threats to kill offence.

When deciding between similar offences, prosecutors should take into account section 6 of the Code for Crown Prosecutors. This sets out that:

6.1 Prosecutors should select charges which:

  • Reflect the seriousness and extent of the offending;
  • Give the court adequate powers to sentence and impose appropriate post-conviction orders;
  • Allow a confiscation order to be made in appropriate cases, where a defendant has benefitted from criminal conduct; and
  • Enable the case to be presented in a clear and simple way.

6.2 This means that Prosecutors may not always choose or continue with the most serious charge where there is a choice and the interests of justice are met by selecting the lesser charge.

6.3 Prosecutors should never proceed with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never proceed with a more serious charge just to encourage a defendant to plead guilty to a less serious one.

6.4 Prosecutors should not change the charge simply because of the decision made by the court or the defendant about where the case will be heard.

6.5 Prosecutors must take account of any relevant change in circumstances as the case progresses after charge.

Although section 187 creates a new offence of cyber-flashing, where the elements of that offence are not made out, someone could still be charged with an offence of sending an indecent or grossly offensive message under section 127(1)(a) of the Communications Act 2003 or section 1(1)(a)(i) of the Malicious Communications Act 1988. Those offences can carry the same punishment as the section 187 offence, although they are unlikely to find themselves on the sex offenders’ register.

Section 188 repeals sections 33 to 35 of the Criminal Justice and Courts Act 2015, which made it an offence to disclose or threaten to disclose private sexual photographs or films without the relevant individual who appeared in them with the intention to cause that individual distress. Section 188 creates four distinct offences and widen the scope of the offence. It is now no longer necessary to prove that the discloser intended to cause the subject of the photograph or film distress. It also widens the meaning of the photographs or films, from “private sexual” to “intimate”. These new offences mean that anyone caught sharing deepfakes or downblousing images could be prosecuted for the first time.

Comment

Part 10 of the Online Safety Act 2023 represents a significant step forward in addressing the complex challenges of online safety and security. Although there is some overlap between the new offences and existing offences, it is hoped the CPS guidance makes it clear what offence should be charged in what circumstance. These new offences are welcomed in closing gaps in existing offences, providing more protection to people from such behaviour online. The introduction of the law relating to the encouragement of serious self-harm online is also welcomed and will hopefully remind people that the way they behave online can have as serious consequences as them acting in person.

These new offences (particularly the new ones to be inserted into the Sexual Offences Act 2003) means that anyone caught sharing deepfakes, downblousing images or cyberflashing could be prosecuted for the first time. This is in response to the rising trend of such behaviours and the concerns many have had over it. It follows the introduction of The Protection from Sex-Based Harassment in Public Act 2023 (see our blog here).

Deepfakes are images, video or audio recordings that have been edited to replace the person in the original with someone else in a way that makes it look authentic. Downblousing is the act of taking a photograph or image down somebody’s shirt, blouse or top without their consent. Cyberflashing typically involves sending an unsolicited sexual or nude image to victims via social media or dating apps, but can also take place through data sharing services with strangers such as Bluetooth and Airdrop – something which commonly happens on public transport.

The CPS has issued guidance to prosecutors on considering charging anyone with such behaviour as well as a press release.  It is hoped that it will make it easier for those caught sharing intimate images online without the other person’s consent to be prosecuted as it removes the requirement for any harm to be intended to the victim. The CPS views this legislation as further protecting (primarily) women and girls against predatory online behaviours. It also now covers those who threaten to share such images without the need for such images to actually be shared. This new legislation is laudable in closing what many have long-lamented is a loophole in the law, which previously enabled people to share intimate images online without consent without consequences when the required intention could not be proved.

However with technology developing at a quicker pace than legislation, it is important that the criminal justice system keeps up to date with and continues to reflect technological advancements.