Online Safety Act – first test cases for the new disinformation offence

Last week's far-right protests resulted in hundreds of charges being brought against rioters across the United Kingdom. Many have been charged with communication offences – having taken not to the streets but to the internet to stir up hatred and spread disinformation – and received jail sentences comparable to those received by rioters who took part in violent disorder and criminal damage. Some of those alleged to have spread disinformation online have been selected as test cases for prosecution under the new false communications offence introduced by the Online Safety Act 2023 (OSA) in January this year. As these new charges make their maiden voyage through the criminal justice system, the offence and its impact on future social media prosecutions will begin to crystalise.

False communications before 31 January 2024

The previous false communications offences were contained in two statutes:

• Malicious Communications Act 1988 (MCA) – Under s.1(1) (offence of sending letters, etc with intent to cause distress or anxiety), it was an offence for a person to send another person a letter, electronic communication or article of any description which was indecent or grossly offensive, a threat, or false and known or believed to be false by the sender. For an offence to occur, the sender must have intended to cause distress or anxiety to the recipient or to any other person to whom they intended that it should be communicated.
• Communications Act 2003 (CA) – Under s.127(2) (improper use of public electronic communications network), it was an offence, for the purpose of causing annoyance, inconvenience or needless anxiety to another, to send, or cause to be sent, by means of a public electronic communications network, a message the sender knows to be false, or persistently make use of a public electronic communications network.

The MCA offence was committed when a person sent a false communication to another person (for example, a direct message), whereas the CA offence was committed when a person sent a false message on a public network (for example, posting, reposting or resharing a message on social media) – together, criminalising both the private and public spread of disinformation.

False communications after 31 January 2024

The OSA repealed in s.1(1) of the MCA and s.127(2) of the CA, inter alia, the provisions relating to false communications – the offences remain in force in respect of the other types of illegal communications (such as indecent or grossly offensive) – and created a new disinformation offence (and several others, including offences aimed at tackling ‘cyber-bullying’, ‘cyber-flashing’ and ‘revenge porn’).

Under s.179 of the OSA (false communications offence), it is an offence for:

• A person to send a message.
• The message conveys information that the person knows to be false.
• At the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience.
• The person has no reasonable excuse for sending the message.

Recognised news publishers and various broadcasters are exempt from committing the offence (s.180). The offence has extra-territorial application and jurisdiction meaning it captures false communications sent outside of the United Kingdom, providing the sender habitually resides within the jurisdiction (or in the case of a company, is incorporated within the jurisdiction) (s.185).

The OSA provides helpful guidance in relation to some elements of the s.179 offence. ‘Sending a message’ is defined broadly and encompasses both private and public communications (s.182). ‘Likely audience’ includes anyone who might encounter a subsequent message forwarding or sharing the content of the original message (s.179.2). In the online context, an offence may be committed by a person who forwards another's message or shares another's post (s.182). Unlike the previous false communications offences – in particular, the MCA offence which was introduced prior to widespread use of the internet – the s.179 offence is clearly geared towards the spread of disinformation online.

What has changed?

Other elements of the s.179 offence are open to interpretation. Like the previous false communications offences, the offence requires the sender to know that the message they are sending is false – criminalising the spread of disinformation and not misinformation. Proving knowledge of a message's falsity will be challenging in the context of social media prosecutions, where context and peculiarities of the English language can significantly alter a message's meaning. The OSA and CPS guidelines offer no real guidance on how this requirement can be met in practice. Further, ‘non-trivial psychological or physical harm’ is undefined. Although there is no requirement for such harm to actually occur, it appears to be wider scope of intended harm than that required by the previous false communications offences. In the coming months, the s.179 offence will be scrutinised in the courts and these uncertainties will be thrashed out.

Obligations on online service providers

Among many others, the OSA places a range of duties on online service providers to prevent their platforms from carrying illegal content and to remove illegal content quickly if they do. These duties are not yet in force, but are expected to kick in towards the end of this year. Existing tools on platforms for reporting abuse – including the spread of disinformation – are expected to be strengthened to meet the OSA's requirements. It remains to be seen whether any measures specific to the reporting of disinformation will be introduced, but with a new, apparently broader offence, and sanctions for online service providers that fail to comply with the OSA's moderation obligations, there will certainly be renewed pressure on providers to target and remove disinformation.

Availability of civil injunctions

The courts have jurisdiction to a grant civil injunction when doing so would be ‘just and convenient’. In the past, the courts have granted victims of computer hacking civil injunctions to prevent, inter alia, the disclosure of their private and/or confidential information off the back of the Computer Misuse Act 1990. It is similarly possible that the courts will consider exercising their discretion upon the base of the s.179 offence and provide individual victims of targeted disinformation with civil injunctions to remove and/or prevent the spread of further disinformation online. The availability of a civil remedy to attack disinformation would certainly be a powerful tool, particularly where an injunction in defamation is not available.

The s.179 offence is an extra string to the bow of media lawyers. Once the OSA's moderation obligations on online service providers come into force, it will provide another avenue to secure the removal and prevent the spread of disinformation online.