Cyber-flashers will have to sign sexual offenders register under law change in England and Wales

Men who send ‘d**k pics’ to strangers will face up to two years in jail and be made to sign the sex offenders register under a law change in England and Wales.

Cyber-flashing is when a person is sent an unsolicited sexual image on their mobile device by an unknown person nearby through social media, messages or other sharing functions such as Airdrop.

There is currently no law which directly addresses cyber-flashing in England and Wales, despite the act being made illegal in Scotland around 12 years ago.

But now, in a move which intends to reflect penalties for indecent exposure in public, cyber-flashing is set to be included in the Sexual Offences Act 2003.

It comes after researchers warned that a lack of thorough accountability and identity-checking measures are helping to fuel the online sexual harassment of young people.

Ministers had contemplated adding cyber-flashing to the Online Safety Bill – a draft legislation announced last week which will force web giants to protect users by cracking down on illegal activity taking place on their platforms.

But the government will now use another, more minor, piece of legislation due to concerns over getting the Online Safety Bill written into law this year, reports The Times.

It is understood that a cyber-flasher could still be found guilty if they send a picture of someone else’s genitals.

A study released last December by UCL Institute of Education found that non-consensual image-sharing practices were ‘particularly pervasive, and consequently normalised and accepted’ – contributing to ‘shockingly low’ rates of reporting online sexual abuse. 

Researchers quizzed 144 boys and girls aged from 12 to 18 in focus groups, and a further 336 in a survey about digital image-sharing. Thirty-seven per cent of the 122 girls surveyed had received an unwanted sexual picture or video online.

Three in four of the girls in the focus groups had also been sent an explicit photo of male genitals, with the majority of these ‘not asked for’.

Snapchat was the most common platform used for image-based sexual harassment, according to the survey findings. But reporting on Snapchat was deemed ‘useless’ by young people because the images automatically delete. 

And research by YouGov last year found that four in ten millennial women have been sent a picture of a man’s genitals without consent, while data by Bumble suggested that this figure could be even higher.

Findings from the dating website revealed that 48 per cent of those aged 18 to 24 have received an unsolicited sexual photograph in the last year alone.

Bumble found that women are disproportionally recipients of the explicit photographs, which are sent on social media, messaging apps, Bluetooth, AirDrop and WiFi.

The dating app began cross-party Parliamentary consultations on November 2 alongside UN Women UK and the United Nations’ gender equality arm. 

It came after similar measures were passed in other countries, including Scotland and areas in the US, with Bumble calling for England to also criminalise cyber-flashing.

Cyber-flashing was criminalised in Scotland under Section 6 of the Sexual Offence in 2009, while a similar measure was also passed in the Texas Senate unanimously in May 2019.

The House Bill 2789 came into force on September 1, 2019, and ruled that sending a lewd photograph without consent was punishable by a fine of up to $500 (£369).

Last year, a Conservative MP called for cyber-flashing to be made a criminal offence to stop Britons sending X-rated snaps to strangers using the AirDrop function via Bluetooth on their iPhones.

Fay Jones, MP for Brecon and Radnorshire, called for ‘digital flashing’ to be made a criminal offence.

She told MPs in January 2021: ‘The scourge of cyber-flashing – where unwanted and unsolicited indecent photographs are distributed to mobile devices – needs to be made a criminal offence.’

Police investigated the first ever case of cyber-flashing in 2015 after an unwanted graphic picture popped up on a shocked London commuter’s iPhone.

There were three cases reported in 2016 and 15 in 2017.

Figures published by the British Transport Police show there were another 35 offences recorded in the first half of 2019 compared to 34 for the whole of 2018.

The number of reported cases is also thought to be much lower than the actual number of instances, partly due to the fact that cyber-flashing is not in itself a crime.

Some cases can be investigated under current public decency laws, or the Malicious Communications Act, but there are currently no specific provisions for cyber-flashing.

Professor McGlynn, an expert in the legal regulation of pornography, image-based sexual abuse and sexual violence, says that the Ministry of Justice ‘so far just keep refusing to act’ despite a number of reports and calls for change in legislation.

She argued that, regardless of the ‘tangible impact’ of cyber-flashing, it remains a ‘breach of civil liberties’.

She said: ‘The bottom line is we shouldn’t have to deal with this sort of thing. We shouldn’t have to change our AirDrop settings to private, or chastise ourselves for not doing so in the first place…

‘Cyber-flashing infringes our right to everyday life, a life without looking over our shoulder, worrying what’s around the corner.’

AirDrop, which is specific to iOS devices such as iPads and iPhones, as well as Apple Macs, uses Wi-Fi and Bluetooth to connect over a short range to other devices.

Its default setting is for ‘contacts only’, which means only people you know can see you.

But to share information with other people, users can make a change to the settings and change it to ‘everyone’.

The setting allows anyone to send an image to that device where – unlike other messages apps such as WhatsApp or SMS – the photograph automatically appears on the screen.

It is then up to the user to choose to ‘accept’ the image, although they will have already seen a preview.