Insights Government announces the addition to the Online Safety Bill of new list of illegal content that tech firms will have to remove, as well as three new communications offences

The Government has announced extra illegal offences to be written on the face of the bill, covering revenge porn, hate crime, fraud, the sale of illegal drugs or weapons, the promotion or facilitation of suicide, people smuggling and sexual exploitation. Terrorism and child sexual abuse are already included. Tech firms will have to remove the new list of criminal content as a priority by ensuring that the features, functionalities and algorithms of their services are designed to prevent their users encountering such content and minimising the length of time such content is available. Previously, tech firms only had to take down such content after it had been reported to them by users. The Government suggests that tech firms can be proactive by using automated or human content moderation, banning illegal search terms, spotting suspicious users and having effective systems in place to prevent banned users opening new accounts.

The Government decided to add the new list of illegal content to the face of the Bill, rather than setting it out in secondary legislation at a later date, to allow Ofcom to take faster enforcement action against tech firms which fail to remove the named illegal content. Ofcom will be able to issue fines of up to 10% of annual worldwide turnover to non-compliant sites or block them from being accessible in the UK.

Three new criminal offences will also be added to the Bill to make sure the criminal law is fit for the internet age.

The announcement follows the Law Commission’s review of the criminal law relating to abusive and offensive online communications in the Malicious Communications Act 1988 and the Communications Act 2003, in which it found that laws have not kept pace with the rise of smartphones and social media. The Commission concluded that the Acts were ill-suited to address online harm because they overlap and are often unclear for internet users, tech companies and law enforcement agencies.

The Commission found that the current law over-criminalises and captures “indecent” images shared between two consenting adults, i.e., “sexting”, where no harm is caused. The Commission also found that the current law under-criminalises, resulting in harmful communications without appropriate criminal sanction. In particular, the Commission said that abusive communications posted in a public forum, such as posts on a publicly accessible social media page, may slip through the net because they have no intended recipient. It also found that the current offences are so broad in scope that they could constitute a disproportionate interference in the right to freedom of expression. The Commission recommended more coherent offences.

The new offences will capture a wider range of harms in different types of private and public online communication methods. These include harmful and abusive emails, social media posts and WhatsApp messages, as well as “pile-on” harassment. None of the offences will apply to regulated media such as print and online journalism, TV, radio and film.

The Government describes the new offences as follows:

  • a “genuinely threatening” communications offence, where communications are sent or posted to convey a threat of serious harm: designed to better capture online threats to rape, kill and inflict physical violence or cause people serious financial harm; it addresses limitations in the existing laws that capture “menacing” aspects of threatening communications but not genuine and serious threatening behaviour; it will also address coercive and controlling online behaviour and stalking, including, in the context of domestic abuse, threats related to a partner’s finances or threats concerning physical harm;
  • a harm-based communications offence to capture communications sent to cause harm without a reasonable excuse: making it easier to prosecute online abusers by abandoning the requirement under the old offences for content to fit within proscribed yet ambiguous categories such as “grossly offensive,” “obscene” or “indecent”; instead it is based on the intended psychological harm, amounting to at least serious distress, to the person who receives the communication, rather than requiring proof that harm was caused; this new offence will consider the context in which the communication is sent so as to better address forms of violence against women and girls, such as communications which may not seem obviously harmful but when looked at in light of a pattern of abuse could cause serious distress, e.g., where a survivor of domestic abuse has fled to a secret location and the abuser sends the individual a picture of their front door or street sign; however, communications that are offensive but not harmful and communications sent with no intention to cause harm, such as consensual communication between adults, will not be captured; prosecutors will have to prove that a defendant sent a communication without any reasonable excuse and did so intending to cause serious distress or worse, with exemptions for communications that contribute to a matter of public interest; and
  • an offence for sending a communication the sender knows to be false with the intention to cause non-trivial emotional, psychological or physical harm: although there is an existing offence in the Communications Act 2003 that captures knowingly false communications, this new offence raises the current threshold of criminality and covers false communications deliberately sent to inflict harm, such as hoax bomb threats, as opposed to misinformation where people are unaware that what they are sending is false or genuinely believe it to be true, e.g., if an individual posts on social media encouraging people to inject antiseptic to cure themselves of coronavirus, it would have to be proved that the individual knew that this was not true before posting it.

The maximum sentences for each offence differ. If someone is found guilty of a harm-based offence they could go to prison for up to two years, up to 51 weeks for the false communication offence and up to five years for the threatening communications offence. The maximum sentence was six months under the Communications Act 2003 and two years under the Malicious Communications Act 1988.

The Government is also considering the Law Commission’s recommendations for specific offences to be created relating to cyberflashing, encouraging self-harm and epilepsy trolling. To read the Government’s press release in full, click here.