I was cyberflashed in public – but I didn’t realise how serious it was until now

As the first person in England to be convicted of cyberflashing – meaning the sending of unsolicited genital pictures – is jailed, Ellie Muir looks back at her own experiences of being cyberflashed by strangers, and asks experts about potential loopholes in the new law

Legal experts have already argued that the new cyberflashing legislation doesn’t have teeth (Getty)

In 2022, I was on the London Underground when a stranger sent me a photograph of his erect penis. I had received an anonymous Bluetooth request that read “iPhone would like to share a photo with you”. AirDrop, the method of Bluetooth-sharing between iPhones, only works if the devices are within close range of one another. Thirty feet, to be precise. So I knew that whoever had sent me the picture was in my train carriage. I kept my eyes fixed on my screen, mainly out of fear that if I did look up, the sender would approach me or do something worse.

This is one of the six times I’ve been sent a non-consensual image of a penis. It has happened through Instagram, Snapchat and Facebook messages – but the AirDrop incident was the scariest. The majority of the senders have been anonymous. Only one wasn’t – a man I met at a club in 2018, who sent me unsolicited pictures of his penis until I blocked him.

I hadn’t fully grappled with the seriousness of what had happened to me on the Tube until last month, when I learnt that the first person in England had been jailed for the crime of cyberflashing, meaning the sending of unsolicited genital pictures. Registered sex offender Nicholas Hawkes, 39, was sentenced to 66 weeks in jail after he pleaded guilty to sending images of his genitals to a 15-year-old and a woman in her sixties. He was convicted under the new Online Safety Act (OSA), which has made cyberflashing a criminal offence.

Legislative recognition of this behaviour is important. It demonstrates that cyberflashing is a clear violation of another person. It shows that the receiving of unsolicited “d*** pics” shouldn’t be seen as an inevitable consequence of existing as a woman online. It also suggests that there is a public interest in ending online behaviours that mirror the dynamics of physical sexual violence.

However, legal experts have already argued that the cyberflashing legislation doesn’t have teeth. Once someone is accused of sending an image or film of their genitals without consent, the OSA outlines that it has to be proven that the perpetrator also intended to “cause distress, alarm or humiliation, or shared the image to obtain sexual gratification”. This wording, some say, is a problem.

“A man that sends you a d*** pic on the train could say [in court] that they were just having a laugh, or maybe that he thought you might like it,” says Professor Clare McGlynn, a lawyer specialising in image-based sexual abuse and a co-author of the book Cyberflashing: Recognising Harms, Reforming Laws. “All of those lines and excuses could be made, and they’re difficult to rebut. It’s hard to prove that it was a deliberate attempt to intimidate.” She adds that she chooses to use the term “d*** pic” instead of “explicit image” to make clear what is being discussed here, and to highlight that most cyberflashing offences are committed by men against women.

Blocking and deleting a user isn’t much help once you’ve been sent the unsolicited image. It’s not a good enough or robust response

Professor Clare McGlynn

When I speak to Nicola*, a 24-year-old freelance social media manager, she wonders how the law would apply to her experiences of cyberflashing. In 2021, she was travelling home after a late shift on an almost-empty Piccadilly line train when she noticed two men glaring at her. She received an AirDrop request and opened it to find a picture of a penis. “It was really disturbing,” she says. “They were staring at me like they were undressing me with their eyes. I got off the Tube and got on the bus instead, but I had convinced myself they were following me.” She deleted the image immediately, but this also meant she couldn’t ultimately trace the phone that had sent it to her.

Nicola has also been cyberflashed multiple times on dating apps. “Recently, I matched with a guy on an app called Pure, and I said ‘Hey, how are you?’ And he sent me a picture of his genitals,” she sighs. “There was no consent there, and I didn’t indicate that was what I wanted at all.” She reported the incident to the app and blocked the user.

While Nicola’s experiences are examples of strangers sending unsolicited images, there is a grey area surrounding the sending of non-consensual photos: is it different if both parties are or have been involved? Last month, a new YouGov survey asked women under 40 if they had received an unsolicited sexual image from someone who was not a partner or romantic interest. More than a third said yes – but they weren’t asked if they’d ever been cyberflashed by someone they were romantically involved with. McGlynn found YouGov’s line of questioning problematic. “What is that saying, then – that cyberflashing doesn’t count if you’re already romantically involved?” she asks.

Earlier this year, Louise*, 25, was dating a man who began incessantly sending her pictures of his penis even when she asked him to stop. “I’d be out for dinner with my friends, and he’d constantly be texting me about sex and randomly sending me pictures of his penis,” she tells me. “I was very clear and asked him to stop sending them, but he carried on. I think he thought it was funny. But it just made me feel weird.”

It is unclear whether an incident of cyberflashing between people in a relationship – however serious – could make it to court under the OSA. It would, experts say, be difficult to prove either the absence of consent on the victim’s side or the intent to cause harm on the defendant’s side. In Scotland, where cyberflashing has been illegal since 2010, prosecution is also dependent on both being proved. Analysis from 2022 found that only one in 20 cyberflashing reports in Scotland resulted in a conviction, and it seems that Westminster’s OSA could similarly have a low prosecution rate in years to come.

The Online Safety Act outlines that it has to be proven that the perpetrator also intended to ‘cause distress, alarm or humiliation, or shared the image to obtain sexual gratification’ (Getty)

McGlynn thinks it’s up to Ofcom – the regulatory body appointed to make sure that social media platforms are complying with the OSA’s provisions – to impose stricter terms. “Ofcom is not taking strong steps to require platforms to take action. The act is always a good thing, but it’s got to be enforced by the regulator.”

She says that in the draft guidance issued by Ofcom, its wording around cyberflashing is particularly weak. “One of their responses is that as long as you can block and delete images, then that’s what needs to be done.” However, McGlynn says that’s too late. “Blocking and deleting a user isn’t much help once you’ve been sent the unsolicited image. It’s not a good enough or robust response.”

An Ofcom spokesperson told The Independent: “Tackling cyberflashing and other illegal online harms is a priority for Ofcom, and we’re moving quickly to consult on the details of the Online Safety Act so we can enforce it as soon as possible. We’re carefully considering all feedback to our proposed measures on illegal content, and expect to finalise these around the end of the year. This guidance is the first of many protections we’ll be introducing. In a few weeks, we’ll be consulting on additional wide-ranging measures designed to protect children specifically, and next year we’ll also propose further steps the largest platforms can take. We intend to review these measures regularly and update them over time as our evidence base improves and as technology and harms evolve.”

Other campaigners also think that tech companies like Meta should be held to a higher standard. Olivia DeRamus is an expert in social media tech and is the founder of Communia, an online social network for women and non-binary people. Each year her company surveys women’s experiences on social media, and its most recent report found that respondents had difficulty reporting abuse to various platforms. She tells me that “every woman we spoke to has mentioned that whenever they are the victim of online abuse, they have to ask their friends to report that account, too”.

She says it is rare for Meta, which owns Facebook, to take down or disable someone’s account based on one report of abuse (The Independent has contacted Meta for comment). DeRamus adds that mainstream social media companies have such advanced technology that they could take further steps to prevent abuses like cyberflashing. “Tech companies absolutely, unequivocally, have the tech to detect poor behaviour online. You just have to look at the targeting tools they use for their algorithms to understand how advanced it is,” she says. “I think there’s a lot of misinformation around the idea that these platforms don’t have the tech to deal with these issues.”

As for McGlynn, the campaign for full legislative recognition of cyberflashing is not yet over. But until then, she stresses, if someone wants to exchange explicit images with another person, asking for consent is pretty simple. “It might be embarrassing to ask for consent, but we need to get over that,” she says. “If you’re not willing to ask, don’t send it.”

*Names have been changed