The Government has announced that sharing intimate images without consent will be made a ‘priority offence’ under the Online Safety Act 2023.

The Online Safety Act (“OSA”) imposes duties on those services within its scope to – among other things – assess the risk of harm from illegal content and take effective steps to manage and mitigate those risks. Such content includes intimate photographs or films of a person that are made without their consent. Indeed, it was the OSA that amended the Sexual Offences Act 2003 to introduce a new offence at section 66B of sharing a photograph or film which shows, or appears to show, another person in an intimate state without their consent, and the perpetrator does not reasonably believe that the person on film consents.

However, additional duties are imposed under the OSA in the context of content which is designated as ‘priority illegal content’. In relation to such content, regulated services must take proportionate measures to prevent individuals from encountering this content in the first place, and to have proportionate systems in place to minimise the length of time during which such content is present.

‘Priority illegal content’ is defined in the OSA to include terrorism content, child sexual exploitation content, and content that amounts to an offence specified in its Schedule 7. In turn, Schedule 7 lists a series of ‘priority offences’ which can be amended from time to time through secondary legislation.

The Government has decided that the offence of sharing intimate images under section 66B Sexual Offences Act should be added to the list of priority offences and has introduced the ‘Online Safety Act 2023 (Priority Offences) (Amendment) Regulations 2024’ to that effect. As the press statement from the Government points out, the change means that “intimate image offences are…on the same footing as public order offences and the sale of weapons and drugs online. If firms fail to comply with their duties the regulator Ofcom will have robust enforcement powers, including imposing fines that could reach up to 10% of qualifying worldwide revenue.”

Commenting on the changes to the OSA, the Technology Secretary, Peter Kyle, said, “the rise in intimate image abuse online is utterly intolerable. As well as being devastating for victims these crimes have also contributed to the creation of a misogynistic culture on social media that can spread into potentially dangerous relationships offline. We must tackle these crimes from every angle, including their origins online, ensuring tech companies step up and play their part. That is why we will classify these vile and cowardly offences as the most severe types of crime under the Online Safety Act. Social media firms will face extra legal obligations – backed up by big fines – to uproot this content from their sites, helping to stop their normalisation and preventing generations becoming desensitised to their damaging effects.”

To read the Government press release click here, and to read the statutory instrument, click here