Online Safety Act 2023 - Powerful tools for prosecutors to protect the public online.

It was reported in March 2024, that the first custodial sentence had been handed down under the new Online Safety Act 2023 (OSA), in an offence involving “cyberflashing”. The Deputy Chief Crown Prosecutor for CPS East of England commented that: “Cyberflashing is a serious crime which leaves a lasting impact on victims, but all too often it can be dismissed as thoughtless ‘banter’ or a harmless joke. Just as those who commit indecent exposure in the physical world can expect to face the consequences, so too should offenders who commit their crimes online; hiding behind a screen does not hide you from the law”.

In this blog we look at the new criminal offences created by the OSA and the CPS Guidance.

On 31st January 2024, the Crown Prosecution Service (CPS) published new prosecution guidance in relation to cybercrime. At the same time, the Government alerted the police and other relevant public authorities about the new criminal offences created within the new (and much anticipated) OSA.

Separately, the media and telecommunications regulator OFCOM has been consulting about the implementation of the OSA. My colleague Dominic Walker explained in a previous JMW blog about OFCOM’s role in the implementation of the OSA.

OFCOM’s role is focused on placing an obligation on big tech companies to remove online harmful content, whereas the CPS is focused on prosecuting people suspected of breaking the new laws. The Chief Crown Prosecutor, Siobhan Blake has described the OSA and the guidance as “powerful tools” to safeguard women and girls against predatory online behaviours and to send to court those who might otherwise have thought that they could hide behind a computer screen.

The CPS guidance is wide ranging and covers several areas such as hacking, intellectual property crime – for example counterfeiting, online sales of illegal items, indecent images and obscene publications. The new OSA covers deepfakes, downblousing images and cyberflashing, and its intended to target online predatory behaviours.

Malicious and offensive communications

Each day millions of communications are sent using the internet and via social media platforms. Where those communications involve the sending of abusive, threatening, indecent, offensive and false messages these could amount to a criminal offence under the new offences created by the OSA.

The guidance sets out four considerations for prosecutors to think about when assessing conduct in relation to communications. Is it:

1. a credible threat of violence to the person or damage to property;
2. specifically target an individual or individuals and which may constitute harassment or stalking, controlling or coercive behaviour, disclosing private sexual images without consent, an offence under the Sexual Offences Act 2003, blackmail or another offence;
3. in breach of court orders or a statutory provision; and
4. grossly offensive, indecent, obscene or false.

Online Safety Act

Part 10 of the OSA has introduced several new communication offences including:

• epilepsy trolling
• cyber-flashing; and
• revenge porn.

Sending/showing flashing images electronically – s183 OSA

Section 183 creates a new offence targeted at the sending or showing of flashing images electronically, with the intention of causing harm to a person with epilepsy, where harm means a seizure, alarm or distress. There is a condition that at the time of sending it was reasonably foreseeable that an individual with epilepsy would view the image.

Viewing the communication includes references to viewing a subsequent communication forwarding or sharing the content of the communication. The may therefore be committed by a person who forwards or shares the electronic communication, as well as by the person sending it.

Cyber-flashing – s. 187 OSA

Cyber-flashing is now an offence under section 66A of the Sexual Offences Act 2003 (inserted by s.187 of the OSA) and 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 the transport network.

Those who send or provide unwanted images or films of genitals, will face prosecution and could find themselves on the sex offenders register, fined and or imprisoned for up to two years.

Revenge porn

The act of disclosing private sexual images with an intent to cause distress has been illegal since April 2015. Further, the Domestic Abuse Act 2021, amended in June 2021, extended the offence to include specific act of threatening to disclose private sexual images. The OSA has now replaced the offence of disclosing private sexual images.

Image based abuse (often referred to as revenge porn) is an offence under section 66B-D of the Sexual Offences Act 2003 (inserted under s.188 of the OSA) and is described by the CPS as a “broad term” when a former partner uploads (or threatens to) an intimate photograph or video where a person is engaged in sexual activity. This can be to the internet or by text message or email.

The OSA reflects the Government’s commitment to bring the law up to date with technology, and recognises the extent to which we engage with the online world.