Sexual Offences in the Online Safety Act 2023
28 November 2024
Author: Claire Mainwaring, Probationary Tenant at 5KBW
Introduction
The Online Safety Act 2023 received Royal Assent on 26th October last year. The legislation’s primary aim is to protect children and adults online, and, as part of that ambition, has introduced into law a number of new offences designed to tackle online sexual abuse.
The sharing of intimate images online
Prior to the implementation of the Online Safety Act 2023, section 33 of the Criminal Justice and Courts Act 2015 made it an offence to disclose a private sexual photograph or film without the consent of an individual who appears in it, and with the intention of causing that individual distress.
The new baseline offence
Section 188 of the Online Safety Act 2023 repealed s. 33 of the CJCA 2015 and introduced four distinct offences relating to the non-consensual sharing of intimate images online. Section 188 inserts sections 66B, 66C and 66D into the Sexual Offences Act 2003.
The new baseline offence under section 66B(1) SOA 2003 removes the previous requirement under s. 33 CJCA 2015 to prove intent to cause distress, considered to be an important factor in low prosecution rates. Instead, s. 66B(1) requires that A intentionally shares the image, B does not consent to the sharing of the image, and A does not reasonably believe that B consents, thereby adopting a similar test to that applied in the offence of sexual assault.
An offence under s.66B(1) is summary only and carries a maximum sentence of 6 months’ imprisonment.
Further offences under s. 188
Offences under subsections (2) and (3) of s. 66B SOA 2003 confer a further mens rea component and vary depending on the underlying intention of the perpetrator, as set out below -
- Subsection (2) requires intent to cause B alarm, distress, or humiliation.
- Subsection (3) requires that A sends the intimate image with the purpose of A or another person obtaining sexual gratification.
Subsection (4) covers threats to share intimate photographs or film, and requires an intention that B, or another person who knows B, will fear that the threat will be carried out, or recklessness as to whether B, or another person who knows B, will fear that the threat will be carried out.
Offences under subsections (2), (3) and (4), are triable either-way and carry a maximum sentence of 2 years’ imprisonment.
Deepfakes
In an attempt to tackle the epidemic of deepfake pornography online, s. 188 includes photographs and film which “appear to show” another person in an intimate state. This statutory construction can be widely interpreted, so that the sharing of deepfake imagery is encompassed within the protections of the Act, going a step further than the preceding offence under s. 33 of the CJCA 2015.
Defences under s. 66C SOA 2003
Section 66C of the Sexual Offences Act 2003, as inserted by s. 188 of the Online Safety Act 2023, confers four principal exemptions to the above offences, as set out below –
- Intimate image shared publicly - Subsection (1) confers a defence when the image was taken in a place which the public, or a section of the public, were permitted to have access (whether on payment or otherwise), and B had no reasonable expectation of privacy, and B was, or A reasonably believed B to be, in an intimate state voluntarily. This exemption is designed to incorporate circumstances in which an individual shares an intimate image on online platforms like OnlyFans.
- Intimate image previously publicly shared - Subsection (3) provides that no offence is committed if the image had, or A reasonably believes it had, been previously shared public, and B had, or A reasonably believes B had, consented to the previous sharing.
- Healthcare for children under 16 - Subsection (4) provides for the sharing of intimate images of individuals under the age of 16 (B), and B lacks or A reasonably believes that B lacks capacity to consent to the sharing of the image, and the image is shared with a healthcare professional acting in that capacity, or the image is shared in connection with the care or treatment of B.
- Between family and friends - Finally, subsection (5) provides that a person does not commit an offence where the image is of a kind normally shared between family and friends.
Cyberflashing
The new offence of “cyberflashing” under section 187 of the Online Safety Act 2023 is the first time that the Government of England and Wales has recognised the unsolicited sending of nude images as a criminal offence.
Section 187 of the Act inserts section 66A into the Sexual Offences Act 2003 and provides –
187 Sending etc photograph or film of genitals
- A person (A) who intentionally sends or gives a photograph or film of any person’s genitals to another person (B) commits an offence if –
- A intends that B will see the genitals and be caused alarm, distress or humiliation, or
- 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.
An offence under this section is triable either-way and carries a maximum sentence of 2 years’ imprisonment.
Commentary
The Online Safety Act 2023 is a signal to sexual predators that they can now expect serious consequences for forms of online sexual misconduct that have previously gone unpunished. Earlier this year, Nicholas Hawkes became the first person in England to be convicted of cyberflashing offences under s. 187 of the Act and was sentenced to 52-weeks’ imprisonment.
However, the Act’s potency in combatting rampant online sexual abuse remains to be seen. When recent research suggests that 1 in 7 women have experienced threats to share intimate images,[1] and 76% of teenage girls have been sent unsolicited nude images online, [2] it is clear that there is much more work to be done.
[1] Refuge (2020), The Naked Threat https://refuge.org.uk/wp-content/uploads/2020/07/The-Naked-Threat-Report.pdf#
[2] https://www.gov.uk/government/news/cyberflashing-to-become-a-criminal-offence
