Laws around 'cyberflashing' offences unclear

'Cyberflashing' is the act of someone using the internet to send an unsolicited image of their naked body, such as so-called 'dick pics', to someone else. File picture

While there’s no specific definition in Irish law, “cyberflashing” is the act of someone using the internet to send an unsolicited image of their naked body, such as so-called "dick pics", to someone else.

In the case of an online vigil in memory of Ashling Murphy, an anonymous male hijacked the Zoom event, and appeared to masturbate on screen.

Section 45 of the Criminal Law (Sexual Offences) Act 2017 makes it an offence for someone to “expose his or her genitals intending to cause fear, distress or alarm to another person”. The section also prohibits masturbation, sexual intercourse, or buggery in a public place.

Dr Catherine O’Sullivan, lecturer in criminal law and criminology at UCC, said this law might not stretch to the virtual world.

“There is a definition of public place given in the section, but because when we think of a public place, we think of a physical public place as opposed to a virtual one, I don't know would this section apply,” she said.

Dr O’Sullivan said that instead, these incidents could be covered under the new Harassment, Harmful Communications and Related Offences Act 2020.

Section 4 of the act makes it an offence to send any threatening or grossly offensive communication to another person with the intent to cause harm.

“There isn't a definition of grossly offensive, so that would mean that it's going to be determined by the judge or jury. There is a risk that maybe some people might think that it's just a joke, as opposed to being grossly offensive, I think it will depend on the nature of the communication,” said Dr O’Sullivan.

“My hope is that a judge or jury would take it very seriously, particularly in the specific context of the vigil,” she added.

Dr O’Sullivan said key to the effectiveness of this new provision is awareness that it exists, amongst both victims and gardaí.

“Unless people know about the existence of these offences, they're not going to report them, and if they have negative experiences in reporting to the gardaí, where, for example, the garda doesn't take it seriously or tells them it's not a crime, because the garda themselves might not know, then that's also an issue. So there's a much bigger public education piece that needs to be done here,” she said.