The Online Safety Act came into force in October 2023. In a blog, Serious and General Crime associate Humzah Ilyas explains the fundamentals of the new legislation.
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The ability to communicate digitally is a vital part of modern life. Communication technologies such as text message, email and WhatsApp along with other social media applications have become such an integral part of our lives that it is almost impossible to imagine living without them.
It is in this context that the UK Government developed the Online Safety Act 2023 in what it said was a bid to make the country the safest place in the world to be online.
The Act created new offences designed to safeguard against online abuse while protecting freedom of expression. These new offences sit alongside others which remain available under the Malicious Communications Act 1988 and the Communications Act 2003.
Some of the most significant of these offences are summarised below, together with the basic steps anyone caught up in these matters should consider.
‘Cyber-flashing’
Sending photographs or a film of genitals can be an offence contrary to section 66A of the Sexual Offences Act 2003 [as inserted by section 187 OSA 2003].
Commonly known as ‘cyber-flashing’, the offence is committed when someone intentionally sends or gives a photograph or film of any person’s genitals to another person, and either:
- The person intends that the other person will see the genitals and be caused alarm distress, or humiliation; or
- The person sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether the other person is caused alarm, distress or humiliation.
Anyone convicted of this offence may be subject to notification requirements and added to the sexual offenders register.
In March 2024 an individual was convicted of cyber-flashing for the first time. Nicholas Hawkes was jailed for 66 weeks after sending unsolicited explicit photos of himself to a woman and a 15-year-old girl using WhatsApp.
Revenge porn
Revenge porn is the distribution of a private sexual image of someone without their consent, and with the intention of causing them distress. This was an existing offence which the Online Safety Act has now expanded.
Section 188 OSA 2023 is intended to prevent revenge porn (as well as so-called ‘down-blousing’ and ‘deep-fake’ images) while also providing legislative provision for the appropriate and consensual sharing of intimate photographs or films.
The offence of sharing or threatening to share intimate photographs or films is committed when a person discloses (or threatens to disclose) a private sexual photograph or film in which another individual appears and by doing so, intends to cause distress to that individual and disclosure is, or would be made without the consent of that person.
Alternatively, the offence is also committed when a person intentionally shares a photo or film which shows or appears to show another person in an intimate state and either:
– the recipient does not consent to the sharing of the photograph or film and the sender does not reasonably believe the recipient consents; or
– the sender shares the image with the intention of causing the recipient alarm, distress or humiliation, and the recipient does not consent to the sharing of the photograph or film; or
– the sender shares the image for the purpose of either themselves, or another person, obtaining sexual gratification; the recipient does not consent to the sharing, and the sender does not reasonably believe the recipient consents.
As can be seen above, there are various elements to the revenge porn offences, each of which needs to be properly made out to achieve conviction.
Anti-trolling
The offence of sending threatening communication was created to tackle the scourge of so-called ‘trolling’ in which social media users verbally attack often well-known people online. In many cases this online bullying can cause its victims to fear for their personal safety.
A person commits the offence of sending a threatening communication where they send a message conveying a threat of death or serious injury; and intends that (or is reckless as to whether) someone encountering the message will feat the threat will be carried out.
A person convicted of sending threatening communications is liable to receive a fine and/or a maximum term of imprisonment of up to five years.
Encouraging or assisting serious self-harm
Exposure to dangerous content online can encourage children and vulnerable people to self-harm. There have been some shocking cases of young people committing suicide after viewing damaging material online.
The offence of encouraging or assisting serious self-harm is intended to prevent trolls and others from distributing communications or content promoting suicide and self-harm.
The offence is committed if a person does a relevant act capable of encouraging or assisting the serious self-harm of another person, and the offender’s act was intended to encourage or assist the serious self-harm of another person. ‘Encouraging’ includes threatening or otherwise putting pressure on another person.
The maximum penalty for someone found guilty of the offence in the Crown Court is a fine and/or a term of imprisonment of up to five years. At the time of writing no public case of this has completed its journey through the criminal justice system.
The criminal offence of sending false communications is designed to protect against disinformation and so-called ‘fake news’ which is intended to cause harm.
Disinformation and ‘fake news’
A person commits the offence of sending false communication if they send a message conveying information that they know to be false; that they intend at the time of sending to cause non-trivial psychological or physical harm to a likely audience (i.e. someone who could reasonably be foreseen to encounter the message or its content), and they have no reasonable excuse for sending the message.
Any criminal prosecution must be brought within three years of the message being sent. The maximum penalty for anyone found guilty of a false communications offence is six months’ imprisonment and/or a fine (dependent on when the offence was committed).
Analysis
Shortly before this blog was published the Government announced its intention to create a new offence which criminalises the creation of sexually explicit “deepfake” images.
This new law – which would likely be introduced as an amendment to the Criminal Justice Bill – expands on the current provision, under section 188 of the OSA 2023, by which sharing of deepfakes is already a crime.
Coming so soon after the passing into law of the OSA, this latest announcement further re-enforces the strength of the Government’s legislative intent to closer regulate our use of digital communication technologies including social media.
The fact that the CPS has already released updated guidance on the OSA (and won a conviction under it) shows that the UK’s enforcement agencies are keen on using their new powers. Hickman & Rose’s expert Serious and General Crime lawyers specialise in representing individuals caught up in criminal allegations connected to the Online Safety Act 2023. Anyone seeking information on the above is advised to contact a member of the team.
