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Connor Stuart outlines some of the Online Safety Bill's proposed communications offences and how they might work in practice
In 1988, British Telecom announced the release of the BT Coral mobile telephone. It weighed just less than a kilogram and had a 7” extendable antennae to boost its signal. In that same year, Parliament passed the Malicious Communications Act (MCA).
In 2003, Nokia released the Nokia 3300 model. It was a Monoblock telephone that boasted a kingly 50 message capacity and a 128-pixel display. You could even play music on it. That was the year the Communications Act (CA) came into force.
Mobile telephones have, evidently, come a long way since then. Now in 2022, smartphones, and the way we use them have become an integral part of our everyday routine. In the same second you turned your attention to this article, over three million emails were sent, 100,000 Google searches made and over 13 new users signed up to some form of social media.
The law governing the criminal offences for communication has, in almost complete contrast, failed to keep pace. Very little in the way of new law has been introduced even as communication technology continues to develop at an extraordinary rate, save for some limited protection in sexual offences.
This is not going to be the position for much longer. The Law Commission published a report in July 2021 that addressed this very issue and proposed a number of new offences. Some of these were accepted by the government and feature in the Online Safety Bill – including online trolling, illegal pornography, underage access to legal pornography, and some forms of internet fraud.
The Bill was put on hold earlier this summer until a new Prime Minister was in place. Liz Truss recently confirmed that the government will be proceeding with the Bill, but that there ‘may be some tweaks’ to focus the Bill more on child online safety while also allowing free speech.
Under the Bill as it presently stands, the proposal of a new ‘harm-based’ communications offence is intended to drag the current communications offences under the MCA and CA into the 21st century. By focusing on ‘harm’ the new offence will focus on the impact of the communication, rather than an objective appraisal of whether it is ‘grossly offensive’. It should, in theory, circumnavigate the issue where a judge or lay bench must decide whether a communication is offensive in their view, and instead consider the impact it had on the recipient or recipients of it. When a case is brought before a jury, the line between offensive and grossly offensive can be highly subjective and depend on the jury members' personal interpretations. Again, this may well avoid the issue entirely.
It also has the benefit of reducing the number of cases that some have argued are ‘over-criminalised’. Consider the case of ‘Count Dankula’ in Scotland – a man who was arrested for posting a YouTube video of a pug that appeared to be making a Nazi salute. The subsequent gross offence this is purported to have caused resulted in a guilty verdict in March 2018 and a fine of £800. Some would argue that – while plainly offensive – it should not have resulted in a criminal prosecution.
This new offence specifically focuses on ‘psychological harm’ and looks to an individual’s intention behind the communication. Were Count Dankula to post that same video, a tribunal under the new law must be satisfied that he intended to cause serious distress or worse to a clearly identified individual or group, as opposed to being generally offensive.
It's worth noting that the only instance of physical harm envisaged by the Law Commission via electronic communication is the scenario whereby someone sends a flashing image to induce another to an epileptic fit. That will be the subject of a separate, specific offence.
Of course, limiting speech in any form is always a dangerous business. Whether the new laws adequately provide for freedom of expression, and sufficiently navigate the difficult legal pitfalls along the way, continues to be controversial. Even while the Bill was in its infancy, scathing remarks about censorship, government overreach and loose definitions were expressed by both sides of the Commons. That question is appraised, alongside some immediate issues and observations, by Gavin Millar KC in an article for Counsel magazine that can be found here.
Critics of this new ‘harm-based’ offence point to the issues with loose definitions. The suggestion is that by substituting ‘harm’ for the current term ‘grossly offensive’ is far from ideal, and simply shifts the uncertainty that criminal courts must contend with to a new word, rather than addressing that uncertainty directly.
Directly encouraging self-harm was also considered in the new proposals, and it’s not difficult to see why it was at the forefront of the Law Commission’s deliberations. One need only consider the 2017 ‘Blue Whale challenge’, widely reported to be an online ‘suicide game’ aimed at teenagers which set 50 tasks over 50 days, or the more recent and ghoulish ‘Momo’ meme to understand the need for new law to be introduced (noting, of course, that the latter example was later identified as a malicious online hoax).
On the face of it, a modern legal perspective on this matter will be a welcome addition to the Bill. One immediate issue, however, is to ensure that vulnerable people who may share non-suicide self-harm or similar are not themselves captured by this new offence – allowing people to share contested and controversial ideas in good faith. The legal threshold proposed is therefore a high one.
Importantly, the harm that was either encouraged or actually committed must be akin to grievous bodily harm. However, an additional mechanism to guard against any unnecessary criminal culpability for those who are already some of the most vulnerable in society, has been put in place. A charge of this particular offence will require the consent of the Director of Public Prosecutions before any proceedings are instigated, and so only the most serious behaviour will proceed before the courts.
An unfortunate but perhaps inevitable phenomenon that has increased as mobile phone technology has facilitated the ease of sharing images between individuals, commensurate with the rise in popularity of dating apps, the practice of ‘cyberflashing’ did not escape the Law Commission’s attention either.
Of particular concern was the fact that cyberflashing is not currently encapsulated by any existing exposure offence, principally under s 66 of the Sexual Offences Act 2003, save for circumstances where the exposure is ‘live’ (say, for example, a webcam). It will perhaps come as no surprise that the act of sending an unsolicited picture of one’s genitalia to another will now be captured by a new criminal offence.
The conclusion was to suggest that this new offence was properly classed as sexual communication offence. In doing so, unwanted exhibitionists can face a maximum of two years in prison and be subject to a Sexual Harm Prevention Order, in a move that will, it is hoped, greatly reduce offences of this kind.
These are just some of the proposed offences created by the Online Safety Bill, currently at Report Stage in the Commons. As with any new law, it is difficult to properly predict the impact it will have once implemented. Whether it rectifies all the ongoing issues remains to be seen. And whether it can withstand the test of time, in an age where technology develops at a phenomenal pace, and the law typically struggles to keep up.
With thanks to Gavin Millar KC for his assistance with this article.
Connor Stuart was called to the Bar in July 2019 and is a barrister at Wilberforce Chambers based in Hull. Connor has a mixed practice in Crime, Family, Civil and Regulatory.
In 1988, British Telecom announced the release of the BT Coral mobile telephone. It weighed just less than a kilogram and had a 7” extendable antennae to boost its signal. In that same year, Parliament passed the Malicious Communications Act (MCA).
In 2003, Nokia released the Nokia 3300 model. It was a Monoblock telephone that boasted a kingly 50 message capacity and a 128-pixel display. You could even play music on it. That was the year the Communications Act (CA) came into force.
Mobile telephones have, evidently, come a long way since then. Now in 2022, smartphones, and the way we use them have become an integral part of our everyday routine. In the same second you turned your attention to this article, over three million emails were sent, 100,000 Google searches made and over 13 new users signed up to some form of social media.
The law governing the criminal offences for communication has, in almost complete contrast, failed to keep pace. Very little in the way of new law has been introduced even as communication technology continues to develop at an extraordinary rate, save for some limited protection in sexual offences.
This is not going to be the position for much longer. The Law Commission published a report in July 2021 that addressed this very issue and proposed a number of new offences. Some of these were accepted by the government and feature in the Online Safety Bill – including online trolling, illegal pornography, underage access to legal pornography, and some forms of internet fraud.
The Bill was put on hold earlier this summer until a new Prime Minister was in place. Liz Truss recently confirmed that the government will be proceeding with the Bill, but that there ‘may be some tweaks’ to focus the Bill more on child online safety while also allowing free speech.
Under the Bill as it presently stands, the proposal of a new ‘harm-based’ communications offence is intended to drag the current communications offences under the MCA and CA into the 21st century. By focusing on ‘harm’ the new offence will focus on the impact of the communication, rather than an objective appraisal of whether it is ‘grossly offensive’. It should, in theory, circumnavigate the issue where a judge or lay bench must decide whether a communication is offensive in their view, and instead consider the impact it had on the recipient or recipients of it. When a case is brought before a jury, the line between offensive and grossly offensive can be highly subjective and depend on the jury members' personal interpretations. Again, this may well avoid the issue entirely.
It also has the benefit of reducing the number of cases that some have argued are ‘over-criminalised’. Consider the case of ‘Count Dankula’ in Scotland – a man who was arrested for posting a YouTube video of a pug that appeared to be making a Nazi salute. The subsequent gross offence this is purported to have caused resulted in a guilty verdict in March 2018 and a fine of £800. Some would argue that – while plainly offensive – it should not have resulted in a criminal prosecution.
This new offence specifically focuses on ‘psychological harm’ and looks to an individual’s intention behind the communication. Were Count Dankula to post that same video, a tribunal under the new law must be satisfied that he intended to cause serious distress or worse to a clearly identified individual or group, as opposed to being generally offensive.
It's worth noting that the only instance of physical harm envisaged by the Law Commission via electronic communication is the scenario whereby someone sends a flashing image to induce another to an epileptic fit. That will be the subject of a separate, specific offence.
Of course, limiting speech in any form is always a dangerous business. Whether the new laws adequately provide for freedom of expression, and sufficiently navigate the difficult legal pitfalls along the way, continues to be controversial. Even while the Bill was in its infancy, scathing remarks about censorship, government overreach and loose definitions were expressed by both sides of the Commons. That question is appraised, alongside some immediate issues and observations, by Gavin Millar KC in an article for Counsel magazine that can be found here.
Critics of this new ‘harm-based’ offence point to the issues with loose definitions. The suggestion is that by substituting ‘harm’ for the current term ‘grossly offensive’ is far from ideal, and simply shifts the uncertainty that criminal courts must contend with to a new word, rather than addressing that uncertainty directly.
Directly encouraging self-harm was also considered in the new proposals, and it’s not difficult to see why it was at the forefront of the Law Commission’s deliberations. One need only consider the 2017 ‘Blue Whale challenge’, widely reported to be an online ‘suicide game’ aimed at teenagers which set 50 tasks over 50 days, or the more recent and ghoulish ‘Momo’ meme to understand the need for new law to be introduced (noting, of course, that the latter example was later identified as a malicious online hoax).
On the face of it, a modern legal perspective on this matter will be a welcome addition to the Bill. One immediate issue, however, is to ensure that vulnerable people who may share non-suicide self-harm or similar are not themselves captured by this new offence – allowing people to share contested and controversial ideas in good faith. The legal threshold proposed is therefore a high one.
Importantly, the harm that was either encouraged or actually committed must be akin to grievous bodily harm. However, an additional mechanism to guard against any unnecessary criminal culpability for those who are already some of the most vulnerable in society, has been put in place. A charge of this particular offence will require the consent of the Director of Public Prosecutions before any proceedings are instigated, and so only the most serious behaviour will proceed before the courts.
An unfortunate but perhaps inevitable phenomenon that has increased as mobile phone technology has facilitated the ease of sharing images between individuals, commensurate with the rise in popularity of dating apps, the practice of ‘cyberflashing’ did not escape the Law Commission’s attention either.
Of particular concern was the fact that cyberflashing is not currently encapsulated by any existing exposure offence, principally under s 66 of the Sexual Offences Act 2003, save for circumstances where the exposure is ‘live’ (say, for example, a webcam). It will perhaps come as no surprise that the act of sending an unsolicited picture of one’s genitalia to another will now be captured by a new criminal offence.
The conclusion was to suggest that this new offence was properly classed as sexual communication offence. In doing so, unwanted exhibitionists can face a maximum of two years in prison and be subject to a Sexual Harm Prevention Order, in a move that will, it is hoped, greatly reduce offences of this kind.
These are just some of the proposed offences created by the Online Safety Bill, currently at Report Stage in the Commons. As with any new law, it is difficult to properly predict the impact it will have once implemented. Whether it rectifies all the ongoing issues remains to be seen. And whether it can withstand the test of time, in an age where technology develops at a phenomenal pace, and the law typically struggles to keep up.
With thanks to Gavin Millar KC for his assistance with this article.
Connor Stuart outlines some of the Online Safety Bill's proposed communications offences and how they might work in practice
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