What's the issue?

One of the issues facing the Online Safety Bill is how to define illegal content.  The original draft of the OSB introduces an offence relating to terrorism or child sexual exploitation and abuse, but allows for other types of "priority illegal content" to be defined under secondary legislation.  This had left service providers with potential obligations in relation to illegal content under the OSB in the slightly difficult position of not knowing in advance of the Bill becoming law, what content it would cover.

What's the development?

The government has now said it intends to add three additional priority illegal offences to the face of the Bill to include revenge porn, hate crime, fraud, the sale of illegal drugs or weapons, the promotion or facilitation of suicide, people smuggling and sexual exploitation. 

The new offences are intended to strengthen protections form harmful online behaviours such as coercive and controlling behaviour by domestic abusers, serious physical threats, and deliberate sharing of dangerous disinformation. 

The government also announced it will require all sites publishing pornography to put measures in place to ensure they are not accessed by under-18s.  This is an expansion of scope as the current draft focuses on commercial sites publishing user-generated content.

The revised Bill is expected to be presented to Parliament in the next few months but has not yet been published. 

What does this mean for you?

It is helpful for service providers to get a clearer idea of the type of illegal content the OSB intends to cover but this is by no means the end of the story.  The government is also considering the Law Commission's recommendations for specific offences relating to cyberflashing, encouraging self-harm, and epilepsy trolling and further offences may be added through secondary legislation.

It also remains to be seen exactly how the obligations relating to the offences play out for service providers.  The current draft places obligations on service providers in relation to illegal content where they have reasonable grounds to believe the content and/or its dissemination constitutes a relevant offence.  Where that is the case, they are required to take proportionate steps to mitigate and manage risks of harm to individuals as identified in risk assessments; to use proportionate systems and processes to minimise presence, length of time of presence and dissemination; and to have appropriate take down systems and policies in place.  These are in addition to obligations to users and reporting and redress requirements. 

Whether and to what extent these obligations may change in the next draft is unclear.  As discussed here, if the government follows the Joint Parliamentary Committee's recommendations, responsibilities under the OSB would be more exacting in addition to covering a wider range of services, content and activity.

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The new offences are:

• A 'genuinely threatening' communications offence, where communications are sent or posted to convey a threat of serious harm – this is designed to capture online threats to rape, kill and inflict physical violence or cause serious financial harm.  It will not only protect public figures but will address coercive and controlling online behaviour and stalking, including in the context of domestic abuse.
• A harm-based communications offence to capture communications sent to cause harm without a reasonable excuse – this offence is intended to make it easier to prosecute online abusers by removing the current ambiguous categories (such as "obscene" or "indecent") and focusing on the intended psychological harm (amounting to at least serious distress) to the recipient, rather than requiring that harm was caused.  The offence will consider the context in which the communication was sent so that communications which might not, by themselves be considered harmful, can be viewed in the context of a pattern of abuse.  Communications that are offensive but not harmful and communications sent with no intention to cause harm (for example consensual communications between adults) will not be captured.
• An offence for when a person sends a communication they know to be false with the intention to cause non-trivial emotional, psychological or physical harm – the new offence will raise the current threshold of criminality compared with the existing offence in the Communications Act which captures knowingly false communications.  It will cover false communications deliberately sent to inflict harm eg hoax bomb threats, rather than misinformation where people are unaware what they are sending is false or genuinely believe it to be true.

The maximum sentences vary from two to 5 years.  The offences will fall in the following categories:

• Encouraging or assisting suicide
• Offences relating to sexual images ie revenge and extreme pornography
• Incitement to and threats of violence
• Hate crime
• Public order offences – harassment and stalking
• Drug-related offences
• Weapons/firearms offences
• Fraud and financial crime
• Money laundering
• Controlling, causing or inciting prostitutes for gain
• Organised immigration offences.

The revised Bill is expected to be presented to Parliament in the next few months but has not yet been published.  See here for a reminder of the safety duties relating to illegal online content.