Online safety: where are we now and what new offences are being proposed?

Much has been written about the draft Online Safety Bill. But, less attention has been given to possible reforms of offences relevant to online safety. Here, we consider the possible reforms and the different ways in which the UK government is tackling online safety.

The Internet is amazing for so many things and on so many levels. The downside is the harmful content, including child abuse, terrorist publications, bullying, hate speech, scams and harassment.

There are three main ways to try to make the Internet a safer place:

• Target the perpetrators;
• target the facilitators e.g. the platforms; and
• target the users, e.g. by better educating them.

This is increasingly a priority for governments and regulators, including in the UK and EU. This article summarises some of the ways in which English law is likely to change in the next few years to beef up online safety. It focuses on developments in the main offences which relate to online harm.

Targeting perpetrators

There is already a panoply of UK offences prohibiting, for example:

• sending a message which is grossly offensive or of an indecent, obscene or menacing character (s.127(1) Communications Act 2003 (CA03))
• sending a message that the sender knows to be false for the purposes of causing annoyance, inconvenience or needless anxiety to another (s.127(2) CA88)
• publishing or distributing written material which is threatening, abusive or insulting and intending thereby to stir up racial hatred or racial hatred is likely to be stirred up (s.19 Public Order Act 1986 (POA86))
• publishing or distributing written material which is threatening and intending thereby to stir up religious hatred or hatred on the grounds of sexual orientation (s.29C POA86)
• causing a person harassment, alarm or distress by displaying any writing, sign or other visible representation which is threatening, abusive or insulting, with an intent to cause a person harassment, alarm or distress (s.4F POA86).

Law Commission Proposals

Some offences need updating for the Internet age and others need to be created. In July 2021, the Law Commission published proposals for the reform of certain communication offences. It observed that, by proscribing content by apparently universal standards, e.g. 'indecent' or 'grossly offensive', the law criminalises without regard to the potential for harm and by reference to categories which are essentially subjective. The Commission's proposed reforms include:

• A new 'harm-based' offence if a defendant, without reasonable excuse, sent or posted a communication that was likely to cause harm to a likely audience and in sending or posting it, the defendant intended to cause harm to a likely audience.
• A new 'false harmful' offence if a defendant, without reasonable excuse, sent or posted a communication that they knew to be false and, in sending the communication, the defendant intended to cause non-trivial psychological or physical harm to a likely audience.
• A new offence prohibiting 'hoax calls' to the emergency services.
• A new 'threats' offence if the defendant sent or posted a communication which conveys a threat of serious harm, and in conveying the threat, the defendant intended the object of the threat to fear that the threat would be carried out, or was reckless as to such.
• A new 'flashing images' offence prohibiting the intentional sending of flashing images to a person with epilepsy with the intention to cause that person to have a seizure.
• A new 'cyber flashing' offence if the defendant intentionally sends an image or video recording of any person's genitals to another person (B), and either the defendant intended that B would see the image or video recording and be caused alarm, distress or humiliation, or the defendant sent the image or video for the purpose of obtaining sexual gratification and was reckless as to whether B would be caused alarm, distress or humiliation.
• A new 'self-harm' offence if the defendant intentionally encouraged or assisted a person to cause themselves serious physical harm.

The next stage is for the UK government to consider if it will implement all or some of these recommendations. We predict that at least the new harm-based offence will be implemented. The other offences are likely to be implemented if there is evidence that they would lead to successful prosecutions or, at least, reduce the chances of the conduct in question happening in future.

Other possible reforms 

The Law Commission will also be making recommendations for Hate Crime offences following a consultation paper launched in 2020. The paper's proposed reforms include: 

• Equalising protection across the existing protected characteristics of race, religion, sexual orientation, disability and transgender status because they are currently not all treated in the same way. This would involve extending the application of 'aggravated' offences, 'stirring up hatred' offences, and potentially 'football chanting' offences to those characteristics that are not already covered.
• Adding sex or gender to the protected characteristics.
• Establishing criteria for deciding whether any additional characteristics should be recognised in hate crime laws, and consulting further on a range of other characteristics, notably 'age'.
• Reformulating the offences of 'stirring up hatred' to focus on deliberate incitement of hatred, providing greater protection for freedom of speech where no intent to incite hatred can be proven.
• Expanding the offence of racist chanting at football matches to cover homophobic chanting.

The Law Commission will also make recommendations on 'intimate image' abuse following the close of its consultation on this in May 2021. The provisional proposals include four new offences:

• A 'base' offence which prohibits the taking or sharing of an intimate image of a depicted person where they do not consent and there is no reasonable belief in consent by the perpetrator.

Three more serious offences: 

• Taking or sharing an intimate image without the consent of the depicted person, with the intention to humiliate, alarm or distress the victim.
• Taking or sharing an intimate image, without the consent of the depicted person where the perpetrator has no reasonable belief in consent, for the purpose of either the perpetrator's own or someone else’s sexual gratification.
• An offence of threatening to share an intimate image where the threat is either intended to cause the depicted person to fear that the image will be shared or the perpetrator is reckless as to whether the depicted person will fear that the threat will be carried out.

Targeting facilitators

The UK government's draft Online Safety Bill (OSB) sets out duties of care on relevant online service providers to prevent or reduce online harm. 

A Joint Committee set up to consider the OSB and hear evidence, including from some of the major social media platforms, recently reported. It recommends a very significant reshaping of the OSB. It is likely that the OSB will progress, following any amendments, to enactment before the end of 2022 (although the exact date is unknown).

Targeting users

Under the OSB (as drafted in May 2021), Ofcom will have an enhanced duty to improve the media literacy of members of the public and, for material published by means of the electronic media, to encourage the development and use of technologies and systems which help to improve the media literacy of members of the public. 'Media Literacy' includes: 

• an understanding of the nature and characteristics of material published online, and 
• an awareness of the impact that such material might have (for example, the impact on the behaviour of those who receive it). 

The Online Media Literacy Strategy guidance (DCMS Online Media Literacy Report) is part of the government's plan to support the education and empowerment of all internet users with the key skills and knowledge they need to be safe online, which includes supporting organisations to take action to help users manage their online safety. Under the media literacy framework, users should understand:

• the risks of sharing personal data online and how that data can be used by others, and be able to take action to protect their privacy online
• how the online environment operates and use this to inform decisions online
• how online content is generated, and be able to critically analyse the content they consume
• that actions online have consequences offline, and use this understanding in their online interactions 
• how to participate in online engagement and contribute to making the online environment positive, whilst understanding the risks of engaging with others.

As part of the Strategy, teachers, carers, librarians and youth workers are to be trained to help youths and the disabled spot disinformation online. A new cross-sector task force will also be established to help increase media literacy rates.

Summary

The UK government is taking active steps to try to tackle online harms. Internet businesses that are within the scope of the OSB will not only need to be ready to comply with the Bill, but also be aware of the developments in the main offences which relate to online harms to prevent or minimise unlawful material.