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To catch a Cyber Flasher?

Posted by Steve Vondran | Aug 28, 2022

Attorney Steve® Social Media Lawyer Insights - California passes hefty law to deter and punish "Cyberflashers"

VIDEO:  Click to watch our video on the new California Law.  Make sure to SUBSCRIBE to join over 37,000 Subscribers to our popular legal YouTube channel

Introduction

A cyberflasher is a person who exposes their genitals to someone else over the internet (typically a guy sending a photo of his genitals to a girl). This can be a very embarrassing and potentially even a dangerous situation, and it's important to know how to stop a cyberflasher if one approaches you. Here are some tips on how to protect yourself from cyberflashers and what to do if one approaches you.  They may be tough to catch (many can be offshore and not subject to United States jurisdiction, or tough to identify) but in the right case a strong message can be sent with punitive damages, attorney fees and potential for damages up to $30,000.

CA Cyberflashing law

What does the law say?

NOTE:  Please note, this Cyberflasher law was passed in California.  Other states like Texas, New York, Florida, Illinois and other states may have similar laws, but this blog deals with the new California law.  We are licensed to practice law in California and Arizona.

THE NEW LAW (part of the Online Safety Bill):

SB 53, Leyva. Unsolicited images.
 

INTRODUCTION

"Existing law creates a private cause of action against a person who intentionally distributes material that exposes an intimate body part of another person or shows that other person engaging in sexual conduct if the person knew that the other person had a reasonable expectation that the material would remain private. This bill would create a private cause of action against a person 18 years of age or older who knowingly sends an unsolicited image, as specified, by electronic means depicting obscene material, as defined. The bill would entitle the plaintiff to recover economic and noneconomic damages or statutory damages of a sum not less than $1,500 but not more than $30,000, as well as punitive damages, reasonable attorney's fees and costs, and other available relief, including injunctive relief, as specified."
 

Text

SECTION 1.

 Section 1708.88 is added to the Civil Code, to read:
1708.88.
 (a) A private cause of action lies against a person 18 years of age or older who knowingly sends an image, that the person knows or reasonably should know is unsolicited, by electronic means, depicting obscene material.
 
(b) For purposes of this section, the following terms have the following meanings:
 
(1) An “image” includes, but is not limited to, a moving visual image.
 
(2) “Obscene material” means material, including, but not limited to, images depicting a person engaging in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation, or depicting the exposed genitals or anus of any person, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
 
(3) An image is “unsolicited” if the recipient has not consented to or has expressly forbidden the receipt of the image.
 
(c) (1) A prevailing plaintiff who suffers harm as a result of receiving an image in violation of subdivision (a) may recover economic and noneconomic damages proximately caused by the receipt of the image, including damages for emotional distress.
 
(2) A prevailing plaintiff who suffers harm as a result of receiving an image, the receipt of which had been expressly forbidden by the plaintiff, in violation of subdivision (a), may recover the following:
 
(A) Economic and noneconomic damages proximately caused by the receipt of the image, including damages for emotional distress.
 
(B) Upon request of the plaintiff at any time before the final judgment is rendered, the plaintiff may, in lieu of those damages specified in subparagraph (A), recover an award of statutory damages of a sum of not less than one thousand five hundred dollars ($1,500) but not more than thirty thousand dollars ($30,000).
 
(C) Punitive damages.
 
(3) A prevailing plaintiff described in paragraph (1) or (2) may recover the following:
 
(A) Reasonable attorney's fees and costs.
 
(B) Any other available relief, including injunctive relief.
 
(4) The remedies provided by this section are cumulative and shall not be construed as restricting a remedy that is available under any other law.
 

EXCEPTIONS

 
(d) This section does not apply to any of the following:
 
(1) An internet service provider, mobile data provider, or operator of an online or mobile application, to the extent that the entity is transmitting, routing, or providing connections for electronic communications initiated by or at the direction of another person.
 
(2) Any service that transmits images or audiovisual works, including, without limitation, an on-demand, subscription, or advertising-supported service.
 
(3) A health care provider transmitting an image for a legitimate medical purpose.
 
(4) An individual who has not expressly opted-out of receiving sexually explicit images on the service in which the image is transmitted, where such an option is available.

How can you protect yourself from Cyberflashers?

Probably the biggest problem is total strangers can send you unwanted sexual photos and videos to your cell phone.  Especially problematic is iPhone and their "air drop" feature (this is usually pretty cool as it allows you to air drop files to another iPhone user), but in this area it also allows for unwanted cyber-sexual-harassment.

Check your settlings in your iPhone.  If you have an iPhone, please read this article that will provide greater details on what you can do to protect yourself from Cyberflashers.

What to do if you are being cyber-harassed

You might think that cyberflashing only happens to people who are careless with their phones or laptops, but even the most careful among us can be at risk. Here's how to protect yourself from this creepy and dangerous form of online harassment.

If someone was cyberflashing me, here is what I would do:

1.  Take screenshots of all the unsolicited messages (make sure to preserve those as evidence)

2.  I would not engage the offender.  Getting mad, or cussing at them or the like may only trigger them to engage in more harmful behavior.

3.  If the offender lives in California, and you know who they are, contact a social media lawyer to discuss your case.

Related Laws

1. Indecent exposure

2.  Revenge porn

3.  Online harassment

4.  "Deep fake" porn

5.  Cyberbullying

6.  Unlawful online pranks (ex. bomb threats)

7.  Digital "pile-ons"

8.  Upskirt and "down-blousing" photos

Contact a California Cyberflash Social Media Lawyer

If you or your kids have been subject to unwanted cyberflashing, and you know who the perpetrator is and assuming the perpetrator lives in California, call us to discuss a possible contingency fee litigation arrangement.  We can be reached at (877) 276-5084 or fill out our contact form and we will get back to you.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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