A Critical Analysis of the Law Commission's Proposed Cyberflashing Offence
| Author | Bo Wang |
| DOI | http://doi.org/10.1177/00220183221125873 |
| Published date | 01 February 2023 |
| Date | 01 February 2023 |
| Subject Matter | Articles |
A Critical Analysis of the Law
Commission’s Proposed
Cyberflashing Offence
Bo Wang
School of Law, University of Sheffield, UK
Abstract
The Law Commission has proposed a new offence of cyberflashing to combat the problem of
sending unsolicited images or videos of human genitals to others. It seems that what the Law
Commissionhasinmindisnotflashing per se, but cyber-nudity. Its proposal fails to comprehen-
sively evaluate the adequacy of existing law and fails to balance the harm of a criminal conviction
against the potential harm of cyberflashing. It shall be argued that the Law Commission seems to
have conflated wrong with harm and that its harm claim is supported only by anecdotal evidence.
The vast majority of cyberflashing cases, including most Airdropping and Bluetoothing cases, are
already covered by existing law, leaving untouched only a handful of one-off Airdropping or
Bluetoothing cases where the flasher did not intend to cause distress or anxiety and the victim
did not apprehend imminent unlawful force. Thus, it is argued that this very narrowly tailored
cyberflashing offence adds very little and that amending existing communication offences or har-
assment offences would provide more protection to victims as such offences could apply to a
wide range of sexually harassing content, not just images or videos of human genitals.
Keywords
Cyberflashing, Communication Offences, Sexual Offences, Harassment, Harm, Wrong
Introduction
The common use of smartphones and wireless technologies makes communication between people more
efficient and easier, and online communication has become an almost indispensable part of people’s daily
life. But such technological and societal change has caused many new problems, one of which is the
prevalence of cyberflashing. Cyberflashing can encompass a number of different behaviours, from the
sending of self-produced sexual images or videos to the non-consensual transfer of pornographic
media via digital means.
1
It is stated that women frequently experience cyberflashing in public places
Corresponding author:
Bo Wang, School of Law, University of Sheffield, Bartolome House, Winter Street, Sheffield S3 7ND, UK.
E-mail: b.v.wang@sheffield.ac.uk
1. Craig A Harper, Dean Fido and Dominic Petronzi, “Delineating Non-consensual Sexual Image Offending: Towards an Empirical
Approach”(2021) 58 (1015347) Aggression and Violent Behaviour 1, 6.
Article
The Journal of Criminal Law
2023, Vol. 87(1) 39–52
© The Author(s) 2022
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DOI: 10.1177/00220183221125873
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