The Online Safety Act 2023: New Offences

In the light of the first conviction under this Act just this week at Southend Magistrates Court[1], we examine the new criminal offences created by the Online Safety Act 2023.

The Act received Royal assent on the 26th October. The legislation itself can be found here. The gov.uk press release summarises the aims of the new legislation:

“The new laws take a zero-tolerance approach to protecting children from online harm, while empowering adults with more choices over what they see online. …The Act places legal responsibility on tech companies to prevent and rapidly remove illegal content, like terrorism and revenge pornography. They will also have to stop children seeing material that is harmful to them such as bullying, content promoting self-harm and eating disorders, and pornography…"

Who might face criminal consequences?

Both the ‘tech’ companies and social media platforms as well as individuals could find themselves falling foul of new criminal offences. The Act creates Ofcom as the regulator for online safety, granting it new powers including those required to enforce the framework. Ofcom could fine social media platforms up to £18 million or 10% of their global annual revenue, whichever is biggest.

Here however we concentrate on the offences which an individual could find themselves charged with.

The communications offences

Part 10 of the Act (“communications offences”) came into force on 31st January 2024.

The aims of the legislation are to make it easier to secure convictions against persons who share intimate images without consent, share intimate ‘deepfakes’, encourage others to harm themselves including suicide, engage in ‘trolling’ and publish/post false information.

The new offences which relate to individuals are in 4 categories:

- False and threatening communications offences: ss. 179, 181

- Sending or showing flashing image: s.183

- Encouraging or assisting self harm: s.184

- Offences (to be inserted to Sexual Offences Act 2003) of Sending etc photograph or film of genitals and sharing or threatening to share intimate photograph or film: ss.187, 188

False and threatening communications offences

Section 179 – False communications offence

  • A summary only offence
  • Maximum sentence is 6 months imprisonment and/or fine.

Pursuant to s. 179(1)(a)-(b), an offence is committed where a person sends a message (cf s. 182) and the message conveys information that the person knows to be false. At the time of sending it, the person must intend the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience (s. 179(1)(c)). A person is not guilty if they have a reasonable excuse for sending the message (s. 179(1)(d)).

The term ‘likely audience’ is defined in s. 179(2). An individual is a ‘likely audience’, if at the time the message is sent, it is reasonably foreseeable that the individual: (a) would encounter the message, or (b) in the online context, would encounter a subsequent message forwarding or sharing the content of the message.

The parameters of the ‘likely audience’ are broadened further by s. 179(3) which provides that where several or many individuals are a likely audience, it is not necessary that the defendant intended to cause harm to any one of them in particular (or to all of them), for the purposes of subsection (1)(c). It is intended that this offence will replace s. 1(a)(iii) of the Malicious Communications Act 1988, as well as s. 127(a) and (b) of the Communications Act 2003, which were repealed by s. 189 of OSA as of 31st January 2024.

This offence is intended to ‘bolster the government’s strong commitment to clamping down on dangerous disinformation and election interference online.’

S.180 sets out the exemptions from liability for this offence. The offence cannot be committed by any of the following:

(1): A ‘recognised news publisher’[2]

(2): A holder of a licence under the Broadcasting Act 1990 or 1996 in connection with anything done under the authority of the licence

(3) The holder of a multiplex licence in connection with anything done under the authority of the licence

(4) The provider of an on-demand programme service in connection with anything done in the course of providing such a service;

(5) An offence under section 179 cannot be committed in connection with the showing of a film made for cinema to members of the public.

Section 181 – Threatening communications offence

  • Triable either way
  • Maximum sentence -  On indictment: 5 years and/or fine - On summary conviction: 6m and/or fine

In terms of the required conduct, the person must send a message and the message must convey a threat of death or serious harm (s. 181(1)(a)-(b)). At the time of sending it, the person must intend an individual encountering the message to fear that the threat would be carried out (even if not by the sender), or be reckless as to the same (s. 181(1)(c)).

‘Serious harm’ is defined in s. 181(2) as serious injury amounting to GBH, rape, assault by penetration (as per s. 2 of SOA 2003), or serious financial loss.

S. 181(3) provides a statutory defence to an offence relating to a threat of serious financial loss. The person must show that the threat was used to reinforce a reasonable demand, and the person must reasonably believe that the use of the threat was a proper means of reinforcing the demand. The defendant need only adduce sufficient evidence to raise the defence. The prosecution must prove that the defence does not apply to the usual standard (s. 181(4)).

This offence is intended to replace the offence contained in s. 1(1)(a)(ii) of the Malicious Communications Act 1988, which was repealed by s. 189 of OSA as of 31st January 2024.

Section 182 contains provisions relating to the interpretations of sections 179-181. Notably, ‘encounter’ means reading, viewing, hearing or otherwise experiencing the message (s.182(5)). In addition, a person is guilty of an offence even if they did not create the message content, but simply forwarded or shared another person’s post (s. 182(6)).

Section 183 – Offences of sending or showing flashing images electronically

  • Triable either way
  • aximum sentence -  On indictment: 5 years and/or fine - On summary conviction: 6m and/or fine

This has been called ‘Zach’s Law’, so-called due to the efforts of a child who has epilepsy, and was campaigning and raising money for the Epilepsy Society. In response, online trolls posted images and GIFs intended to trigger seizures for those with epilepsy.[3]

S. 183 creates two separate offences, in subsections (1) and (8) respectively.

S. 183(1) contains two variations of an offence whereby a person electronically ‘sends’ a communication with flashing images without reasonable excuse.

  • One variation is focused on an offence where it is reasonably foreseeable that an individual with epilepsy would be among others who would view the image and the defendant intends that such an individual will suffer harm as a result of viewing the flashing images (s. 183(2)).
  • The other variation is more tightly focused upon a scenario where the defendant knows or suspects that an individual with epilepsy will view the image. The defendant must intend that the individual will suffer harm as a result of viewing the flashing images (s. 183(3)).

The offence in s. 183(8) is directed at a scenario where an individual ‘shows’ another flashing images via an electronic communications device, when they know or suspect that the other has epilepsy, intend that the other will consequently suffer harm, and have no reasonable excuse.

‘Harm’ means a seizure, or alarm or distress (s. 183(13)).

The exemptions of s.180 (see above) apply to these offences and a provider of an internet service by means of which a communication is sent is not to be regarded as a person who sends a communication.

Section 184 - Offence of encouraging or assisting serious self-harm

  • Triable either way
  • Maximum sentence -  On indictment: 5 years and/or fine    On summary conviction: 6m and/or fine

An offence is committed if a person does a relevant act capable of encouraging or assisting the serious self-harm of another person, and the act was intended to encourage or assist the same (s. 184(1)(a)-(b)).

The relevant acts are set out in subsection 2:

  1. communicates in person;
  2. sends, transmits or publishes a communication by electronic means;
  3. shows a person such a communication;
  4. publishes material by any means other than electronic means;
  5. sends, gives, shows or makes available to a person—

sends, gives, shows or makes available to a person - (i) material published as mentioned in paragraph (d), or (ii) any form of correspondence, or

  1. sends, gives or makes available to a person an item on which data is stored electronically

‘Serious self-harm’ is defined as self-harm amounting to GBH within the meaning of the OAPA 1861. It can include successive acts of self-harm which cumulatively reach that threshold (s. 184(3)).

The parameters of the offence are drawn widely. A person can commit an offence even if no serious self-harm occurs (s. 184(5)) and the other person referred to in subsection 1 need not be a specific person or class of persons known to, or identified by the defendant (s. 184(4)).

The act creates criminal liability for a person (D1) who arranges for another (D2) to do the act capable of encouraging or assisting the serious self-harm of another person, if D2 then does that act (s. 184(6)).

For an offence to be proved against D involving an electronic communication or a publication in physical form, it does not matter whether the content of the communication or publication is created by D (so for example, in the online context, the offence under this section may be committed by forwarding another person’s direct message or sharing another person’s post)

A provider of an internet service by means of which a communication is sent, transmitted or published is not to be regarded as a person who sends, transmits or publishes it

The Criminal Justice Bill proposes an offence of the same name to replace the s.184 offence, but covering a broader range of acts.[4] In terms of the progress of the bill, it has completed the Committee Stage in the House of Commons (12 December 2023). The act capable of encouraging or assisting the serious self-harm includes any conduct except conduct consisting only of one or more omissions.

*Notes on liability for offences above

The Act provides that prosecutions for these offences can be brought for acts done outside the UK and corporate officers (a director, manager, associate, secretary or other similar officer or a person purporting to act in any such capacity - s. 186 (2) (a) and (b)):

Under s. 185(1), sections 179(1), s. 181(1) and s. 183(3) apply to an act done outside the UK. These provisions only have extra-territorial application where the person is an individual who is habitually resident in England and Wales or a body incorporated/constituted under the law of England and Wales or Northern Ireland (s. 185(2)). Sections 185(3)-(4) make similar provision for an  offence under. s. 184(1).3

S. 186 relates to liability of corporate officers in relation to sections 179, 181, 183 or 184.

Section 187 – Sending etc photograph or film of genitals. 

  • Triable either way
  • Maximum sentence – On indictment: 2 years imprisonment On summary conviction: 6 months and/or fine

This section inserts s. 66A into the Sexual Offences Act 2003. A person commits an offence where they intentionally send or give a photograph or film of any person’s genitals to another (s. 66A(1)). They must either:

  • Intend that the other will see the genitals and be caused alarm, distress or humiliation (s. 66A(1)(a)) or;
  • Send the photograph/film for the purpose of obtaining sexual gratification  and be reckless as to whether the other person will be caused alarm, distress or humiliation (s. 66A(1)(b)).

Section 188 – Sharing or threatening to share intimate photograph or film

- S. 188(1) is summary only – Maximum sentence 6 months and/or fine

- Sections 188(2)-(4) are Triable either way - Maximum sentence – On indictment: 2 years 6 months and/or fine

This section inserts s. 66B into the SOA 2003. It contains 4 separate offences.

The offence in s. 188(1) relates to intentionally sharing a photograph or film which shows, or appears to show another person (B) in an intimate state. The person (A) commits an offence where B does not consent and A does not reasonably believe that B consents. The statutory defence of reasonable excuse can be relied upon (s. 188(8)).

S. 188(2) creates an offence where a person intentionally shares the material without consent, but does so with the intention of causing B alarm, distress or humiliation.

S. 188(3) creates an offence where a person intentionally shares the material without consent, for the purpose of A or another person obtaining sexual gratification. A is guilty of an offence if they do not reasonably believe that B consents.

Pursuant to s. 188(12), if found not guilty in relation to s. 188(2) or (3), a person may be found guilty of an offence under s. 188(1).

S. 188(4) creates an offence where a person threatens to share the material and does so with the intention that B or another who knows B will fear that the threat will be carried out, or is reckless as to the same.

As of 31st January 2024, section 90 of OSA repealed the similar offence of disclosing, or threatening to disclose, private sexual photographs and films with intent to distress contained in s. 33 of the Criminal Justice and Courts Act 2015.

S. 188 also inserts s. 66C and s. 66D into SOA 2003. Section 66C contains exemptions to the above. S. 66D relates to interpretation.

66C Exemptions/defences

Subsection (1) (a) If the photograph or film was taken in a public place (whether on payment or otherwise) and the complainant had no reasonable expectation of privacy (to be determined by reference to the circumstances that the person sharing the photograph or film reasonably believes to have existed at the time the photograph or film was taken) and was in the intimate state voluntarily.

Subsection (3): No offence is committed if the photograph or film had, or A reasonably believes it had, been previously publicly shared and B had (or A reasonably believes B had) consented to the previous sharing

Subsection (4): A is a Healthcare professionals acting in that capacity (or those acting in connection with treatment by such a professional) in the case of a person under 16 where A reasonably believes that person lacks capacity to consent to the sharing of the image;

Subsection (5): Family and Friends sharing images ‘of a kind ordinarily shared’.

There are therefore defences provided for to cover situations where a person has consented to the creation and sharing of the image in the past, whether paid or not, medical professionals and family and friends sharing pictures of children.

Headlines

These offences are undoubtedly produced to deal with relatively recent phenomenon and behaviour such as trolling, deepfakes, revenge porn, sending unwanted pictures of genitals or encouraging others to harm themselves online or electronically. As one often sees with the creation of new criminal offences there are many forms of behaviour which could feasibly have been prosecuted under existing legislation though in some aspects this Act has seemingly brought greater clarity for prosecutors.

There has already been, at the time of writing, a successful prosecution for the s.187 offence. NH, 39, of Basildon, Essex, has become the first person in England and Wales to be convicted of ‘cyber-flashing’. NH sent unsolicited photos of his erect penis to a 15-year-old girl and a woman on Friday 9th February. The woman took screenshots of the image on WhatsApp and reported Hawkes to Essex Police the same day. Hawkes admitted two charges when he appeared before magistrates in Southend. Sefer Mani, of the Crown Prosecution Service (CPS) in the East of England, said: "Cyber-flashing is a grotesque crime and the fact we were able to deliver swift justice for the two victims shows the new law is working.”

In terms of sentencing, we await the publication of guidelines from the Sentencing Council and it thus remains to be seen whether the new offences will bring about a more punitive effect for behaviour which could have been prosecuted under existing laws.

NH has been remanded in custody and committed to the Crown Court for sentence though he was also in breach of a community order imposed for sexual activity with a child under 16 and exposure last year, at Basildon Crown Court, the CPS said.