Brian Sims

Online safety law strengthened in bid to eradicate illegal content

DIGITAL SECRETARY Nadine Dorries has announced extra priority illegal offences to be written on the face of the Online Safety Bill to include fraud, hate crime, the sale of illegal drugs or weapons, the promotion or facilitation of suicide and people smuggling. Terrorism is already included.

Previously, firms would have been forced to take such content down after it had been reported to them by users, but now they must be proactive and prevent people being exposed in the first place.

The Online Safety Bill will clamp down on human traffickers, extremist groups encouraging violence and racial hate against minorities and suicide chatrooms.

Naming such offences on the face of the Online Safety Bill removes the need for them to be set out in secondary legislation at a later date, while Ofcom can take faster enforcement action against those tech firms who fail to remove the named illegal content.

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.

Three new criminal offences, recommended by the Law Commission, will also be added to the Online Safety Bill to make sure criminal law is fit for the Internet age.

Nadine Dorries stated: “This Government said it would legislate to make the UK the safest place in the world to be online, while also enshrining free speech, and that’s exactly what we are going to do. Our world-leading Online Safety Bill will ensure 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. These changes mean that 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 we can do so far more quickly and more effectively.”

Home Secretary Priti Patel added: “The Internet cannot be a safe haven for despicable criminals to exploit and abuse people online. Companies must continue to take responsibility for stopping harmful material on their platforms. These new measures will make it easier and swifter to crack down on offenders and hold social media companies to account.”

Concentration on algorithms

In order to proactively tackle the priority offences, firms will need to make sure the features, functionalities and algorithms of their services are designed to prevent their users encountering them and minimise the length of time this content is available. This could be achieved by automated or human content moderation, banning illegal search terms, spotting suspicious users and having effective systems in place to prevent banned users from opening new accounts.

Ministers asked the Law Commission to review the criminal law relating to abusive and offensive online communications in the Malicious Communications Act 1988 and the Communications Act 2003. The Commission found that these laws have not kept pace with the rise of smart phones and social media and concluded that the laws were ill-suited to address online harm because they overlap and are often unclear for Internet users, tech companies and law enforcement agencies alike.

The Law Commission also found that the current law over-criminalises and under-criminalises, duly resulting in harmful communications without appropriate criminal sanction. In particular, abusive communications posted in a public forum, such as posts on a publicly accessible social media page, may slip through the net because they have no intended recipient. The current offences are sufficiently broad in scope that they could constitute a disproportionate interference in the right to freedom of expression.

More coherent offences

In July last year, The Law Commission recommended more coherent offences. The new offences will capture a wider range of harms in different types of private and public online communication methods. These include harmful and abusive emails, social media posts and WhatsApp messages. None of the offences will apply to regulated media such as print and online journalism, television, radio and film.

The offences include:

*a ‘genuinely threatening’ communications offence, whereby 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 of causing non-trivial emotional, psychological or physical harm

The maximum sentences for each offence will differ. 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 was six months under the Communications Act and two years under the Malicious Communications Act.

Professor Penney Lewis, Commissioner for Criminal Law, observed: “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 the victims of genuinely harmful communications as well as better protecting freedom of expression. I’m delighted that the Government has accepted these recommended offences.”

Weak defences

Responding to the announcement that fraud is to be made a priority offence in the Online Safety Bill, Cifas CEO Mike Haley explained: “For far too long, fraud perpetrated on online platforms hasn’t been sufficiently dealt with by tech companies. Weak defences on some platforms make them hunting grounds for fraudsters attempting to trick members of the public into parting with their money or personal details.”

Haley continued: “Cifas welcomes the decision to make fraud a priority offence within the Online Safety Bill. Four in every five identity fraud cases recorded to the National Fraud Database are committed via online channels so it’s vital that policy reflects this serious risk to the public. By virtue of the Government making fraud a priority offence, we hope to see swift action being taken by platforms to protect victims and deter criminality.”

He added: “Further, we wish to see this action coupled with greater resource being made available to the police service in order to fight the fraud threat. The current tsunami of scams targeting members of the public is the end result of years of under-prioritisation of fraud. Co-ordinated activity across organisations and sectors will be required to stem this tide.”

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