Originally published in the Solicitors Journal on the 4th of July
The new Online Safety Bill imposes stringent compliance duties on private companies providing online services. Appointing the Office of Communications (Ofcom) as regulator of the new regime, it grants Ofcom substantial new powers of entry, inspection, audit and seizure to enforce these new duties. The bill also introduces three new criminal offences relating to harmful communications, false and threatening communications and ‘cyberflashing’.
The bill has drawn some controversy as it seeks to impose a new duty on online service providers to limit ‘activity that is lawful but potentially harmful.’ In other words, providers ought to restrict behaviour which, though potentially distressing or harmful, is not actually illegal.
The bill was branded ‘illiberal and impractical,’ by the Economist, while an Index on Censorship brief by Gavin Millar QC went further, pointing out it ‘does not comply with Article 10 of the European Convention on Human Rights and far from the claim of the Culture Secretary that the bill will protect free speech it actively undermines existing legal protections in an unprecedented manner.’
Others have welcomed the new offences introduced by the bill, with the FA and Kick It Out issuing a joint statement in praise of the bill as ‘a vital opportunity to ensure that all users of social media, including footballers, are better protected from online discriminatory abuse.’ Others still have said that the bill does not go far enough. A post by Samaritans suggests that ‘there is still a gaping hole [in the legislation] that fails to protect adults from ‘“legal but harmful” suicide and self-harm content.’
Duties of care
The Online Safety Bill would impose duties of care on providers of online user-to-user services (such as social media sites) and search services. The duties are focused on preventing the dissemination of both harmful (but currently legal) and illegal content and activity. This would be achieved by providers’ ongoing monitoring of content published online, with content in breach of the rules liable to be removed. “Content” is broadly construed as “anything communicated by means of an internet service, whether publicly or privately” and would thus require a complete overhaul of current provider controls, processes and terms of service. In effect, these private companies would become government enforcers.
The duties would include constant monitoring for the publication of harmful and illegal content and making corresponding risk assessments; publishing content reporting and complaints procedures; new obligations relating to record-keeping and review; and setting out measures to be taken to safeguard freedom of expression and privacy.
Per the definition of “harmful”, the content presents a material risk of significant harm to an appreciable number of children or adults in the United Kingdom (clauses 53 and 54). The vagueness of this definition has faced criticism, as it leaves determination of whether or not content is harmful in the hands of the service providers themselves.
The extent of these duties is such that it has been widely speculated that the requisite monitoring will need to be undertaken algorithmically. This has given rise to concerns that user-generated publications and other online material will be erroneously taken down.
Additionally, the bill imposes more onerous duties where children are involved, including duties on providers to take measures to mitigate and manage risks of harm to children; to use proportionate systems and processes designed to prevent children from encountering harmful content; and to specify in their terms of service how children are to be prevented from encountering harmful content. In certain circumstances where harmful content is identified on the service, providers will be subject to new reporting requirements.
Other criminal offences
Clause 151 proposes a new harmful communications offence to replace the offences in the Malicious Communications Act 1988 and those at cls.127(10 and 127(2)(a) and (b) of the Communications Act 2003. The offence would be committed where someone sends a message and at the time of sending there was a ‘real and substantial risk that it would cause harm to a likely audience; and the person intended to cause harm to a likely audience; and the person has no reasonable excuse for sending the message’. Under clause 151(2), “likely audience” is defined as any individual for whom ‘it is reasonably foreseeable the individual would encounter the message or…would encounter a subsequent message forwarding or sharing the content of the message.’ Under clause 151(4), “harm” is defined as ‘psychological harm amounting to at least serious distress.’ This would be an either-way offence punishable on summary conviction by a term of imprisonment of up to 12 months and on indictment up to 2 years.
Clause 152 would introduce a new false communications offence. This would be committed where an individual sends a message which they know conveys false information, intending to cause ‘non-trivial psychological or physical harm to a likely audience’ (152(1)(c)). Clause 152(4) introduces safeguards in respect of this offence in favour of news publishers, broadcast licence holders and on-demand programme services. Under 152(5) this offence cannot be committed in connection with the showing of a film made for cinema to members of the public. This particular offence would be summary only, punishable by up to either six months’ or 51 weeks’ imprisonment, depending on when the offence is committed.
If the bill is enacted as drafted, it is unclear how levels of harm will be assessed. As compared to the high threshold of ‘serious harm’ in libel law, ‘non-trivial’ would appear to be a very low bar. For example, would a message wherein its sender falsely claimed to have had an extra-marital affair with someone’s partner and which caused upset to the recipient fall under this offence?
Clause 153 would introduce a new threatening communications offence, committed where an individual sends a message conveying a threat of death or serious harm and intends the recipient of the message should fear the threat will be carried out, or is reckless as to whether they would fear the threat would be carried out. Under 153(2), “serious harm” is defined as injury amounting to GBH under the Offences against the Person Act 1861, rape or assault by penetration under the Sexual Offences Act 2003, or serious financial loss. This would be an either-way offence punishable by up to 12 months’ imprisonment on summary conviction, or five years’ imprisonment on indictment.
A defence is provided under clause 153(3) where a threat of serious financial loss is made to reinforce a reasonable demand and the sender reasonably believes the use of the threat was a proper means of reinforcing the demand.
Clause 154 provides for interpretation of these three clauses such that, for example, a provider of an internet service on which a communication is sent is not to be regarded as a person who sends a message, but someone who forwards, shares, or re-blogs a message created by another person is to be regarded as a sender.
Clause 155 provides these three offences have extra-territorial application and jurisdiction and apply to an act done outside the United Kingdom by someone who is a “United Kingdom person”. Clause 155(2) defines this as an individual who is habitually resident in England and Wales, or a body incorporated or constituted under the law of England and Wales.
Clause 156 places liability for these offences on corporate officers where the offence has been committed wither their consent or connivance or is attributable to any neglect on their part. Clause 156(2) provides that “officer” means a director, manager, associate, secretary or other similar officer, or a person purporting to act in such a capacity.
Clause 157 would introduce a ‘cyberflashing’ offence for sending a photograph or film of genitals. This would be inserted into the Sexual Offences Act 2003 as a new section 66A. The offence would be committed where someone sends or gives a photograph or film of any person’s genitals to another person, intending they will see it and be caused alarm, distress, or humiliation, or does so for the purpose of obtaining sexual gratification and is reckless as to whether they are caused alarm, distress or humiliation. “Sending” is given a wide definition under clause 157, including sending by any means, showing it to another person, or placing it for a particular person to find.
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