Insights Government inserts new clause into Online Safety Bill creating new offence of encouraging or assisting serious self-harm

The Online Safety Bill is currently at the Committee Stage in the House of Lords, having completed its third reading in the House of Commons and its second reading in the House of Lords.

On 18 May 2023, Lord Parkinson of Whitley Bay, who is a Conservative Life Peer and Parliamentary Under Secretary of State of the Department for Culture, Media and Sport, amended the Bill by adding in a new Clause after Clause 64 to introduce a new offence of encouraging or assisting serious self-harm. The Government first announced that encouraging self-harm would be criminalised in the Bill back in November 2022.

Under the new Clause, a person will commit an offence if he/she “does a relevant act” that is capable of encouraging or assisting the serious self-harm of another and that act is intended to encourage or assist serious self-harm.

The Bill defines “does a relevant act” as: (i) communicating in person; (ii) sending, transmitting or publishing a communication electronically; (iii) showing someone such a communication; (iv) publishing material by any means other than electronically; (v) sending, giving showing or making available such published material or any form of correspondence; and (vi) sending, giving or making available an item on which data is stored electronically.

The Bill defines “serious self-harm” as self-harm amounting to grievous bodily harm under the Offences Against the Persons Act 1861.

The person to whom the “relevant act” is done does not have to be a specific person or class of persons known to or identified by the perpetrator and it is possible to commit an offence whether serious self-harm occurs or not. Further, someone who arranges for another person to do an act that encourages or assists serious self-harm and that act is carried out will be treated as also having done such act.

The person committing the offence does not need to have created the communication or publication themselves. Therefore, forwarding a message or sharing a post is covered, as is sending a hyperlink to directly accessible content that encourages or assists serious self-harm. However, ISPs providing the service by which a communication is sent, transmitted or published are not caught by the offence.

As for the penalties, on summary conviction in England and Wales, the person convicted can be imprisoned for a term not exceeding the general limit in a magistrate’s court or they can be fined or both. On conviction on indictment, the prison term cannot exceed five years or the person can be fined or both imprisonment and a fine can be imposed. To read the amendment in full, click here.