Online Safety Bill to have new priority offences added
Offences are to be written on the face of the Online Safety Bill, including 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.
By naming these offences on the face of the bill, the government removes the need for them to be set out in secondary legislation later, allowing Ofcom to take faster enforcement action against tech firms that fail to remove the named illegal content.
Furthermore, 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.
The three new criminal offences, recommended by the Law Commission, are as follows.
- A ‘genuinely threatening’ communications offence, where communications are sent or posted to convey a threat of serious harm. This offence is designed to better capture online rape threats, as well as threats to kill, inflict physical violence or cause people serious financial harm. It will protect public figures (for example, MPs, celebrities and footballers) and will address online coercive behaviour and stalking (including in the context of domestic abuse).
- A harm-based communications offence, to capture communications sent to cause harm without a reasonable excuse. The intention is to make it easier to prosecute online abusers by removing categories such as ‘grossly offensive’, ‘obscene’ or ‘indecent’, and focusing on the intended psychological harm (amounting to at least serious distress) to the person who receives the communication. 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. For example, it might have to be proven in court that a defendant sent a communication without any reasonable excuse and did so intending to cause serious distress or worse, with exemptions for communication that contributes to a matter of public interest.
- An offence for when a person sends a communication they know to be false, with the intention to cause non-trivial emotional, psychological or physical harm. Although an existing offence in the Communications Act captures knowingly false communications, this new offence raises the current threshold of criminality. It covers false communications deliberately sent to inflict harm, such as hoax bomb threats, rather than misinformation where people are unaware what they are sending is false or genuinely believe it to be true. For example, if an individual posted dangerous, hoax COVID-19 treatments on social media, a court would have to prove that the individual knew this was not true before posting it.
The maximum sentences for each offence will differ. If someone is found guilty, they could go to prison for up to:
- five years for the threatening communications offence
- two years for the harm-based offence
- 51 weeks for the false communication offence
The maximum sentence was six months under the Communications Act 2003 and two years under the Malicious Communications Act 1988.