British Government seeks to tighten up Online Safety Bill after facing criticism

The British Government has announced a new range of illegal offences that will be written into its forthcoming Online Safety Bill, after it faced criticism from MPs that the primary legislation was not sufficient enough to protect against multiple types of online harms facing users. 

Just a couple of weeks ago MPs on the Digital, Culture, Media and Sports Committee issued a double blow to the government's Online Safety Bill, claiming that it wasn't robust enough to tackle illegal content, nor was it sufficient enough to protect freedom of expression. 

The jury is out on whether the latest changes to the Bill go far enough to counter all of its flaws, but the government's latest announcement does help to address the Committee's claim that it ignores ‘legal but harmful' content online. 

Digital Secretary Nadine Dorries has said that the Bill will now include extra priority illegal offences including revenge porn, hate crime, fraud, the sale of illegal drugs or weapons, the promotion or facilitation of suicide, people smuggling and sexual exploitation. 

The aim is to make the platform owners hosting such content more proactive in removing it, rather than waiting for users to request for it to be taken down. Regulator Ofcom will also be given powers to issue fines of up to 10 per cent of annual worldwide turnover to non-compliant sites or block them from being accessible in the UK. 

Commenting on the update Digital Secretary Nadine Dorries said:

This government said it would legislate to make the UK the safest place in the world to be online while enshrining free speech, and that's exactly what we are going to do. 

Our world leading bill will protect children from online abuse and harms, protecting the most vulnerable from accessing harmful content, and ensuring there is no safe space for terrorists to hide online.

We are listening to MPs, charities and campaigners who have wanted us to strengthen the legislation, and today's changes mean we will be able to bring the full weight of the law against those who use the internet as a weapon to ruin people's lives and do so quicker and more effectively.

Making structural changes

The new communications offences, the government said, will strengthen protections form harmful online behaviours - such as coercive and controlling behaviour by domestic abusers; threats to rape. Kill and inflict physical violence; and deliberately sharing dangerous disinformation about hoax COVID-19 treatments. 

Specific offences related to cyber flashing, encouraging self-harm and epilepsy trolling are also being considered. 

The government's aim is to force firms to structurally change how they manage harmful content online. The Online Safety Bill will require that firms make sure features, functionalities and algorithms of their services are designed to prevent their users encountering harmful content and also to minimise the length of time this content is available. 

Whether or not the government will be given the ability to audit what's taking place ‘under the hood' of these online companies to ensure enough is being done, remains unclear. 

The offences now being included in the Online Safety Bill, which were recommended by the Law Commission, are: 

• A ‘genuinely threatening' communications offence, where communications are sent or posted to convey a threat of serious harm.

• A harm-based communications offence to capture communications sent to cause harm without a reasonable excuse.

• 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

The government has said that the maximum sentences for each offence will differ. For example, if someone is found guilty of a harm based offence they could go to prison for up to two years, up to 51 weeks for the false communication offence and up to five years for the threatening communications offence. The maximum sentence under The Communications Act is six months and the maximum sentence under the Malicious Communications Act is two years. 

Professor Penney Lewis, Commissioner for Criminal Law, said:

The criminal law should target those who specifically intend to cause harm, while allowing people to share contested and controversial ideas in good faith. Our recommendations create a more nuanced set of criminal offences, which better protect victims of genuinely harmful communications as well as better protecting freedom of expression.

I am delighted that the Government has accepted these recommended offences.

My take

These updates will likely appease some of the criticism facing the government over its Online Safety Bill, but there are still a number of gaps between what is being recommended and what is being delivered. For example, there is no mention yet about stripping the powers of ministers to decide what is harmful in certain cases - something which the current legislation allows. Equally, the government hasn't yet backtracked on its attempts to limit end-to-end encryption. Nor is there any mention of how the UK's legislation will work in lockstep with the EU's Digital Services Act (which will likely have more sway with internet companies). In other words, whilst the government will make a big sing and dance about these changes, there remains significant questions about the difference between what's legal and practically possible. As well as what's appropriate in terms of government power online.