The Online Safety Bill
The Online Safety Bill currently making its way through the UK Parliament establishes a new regulatory regime to address illegal and harmful content online. It imposes legal requirements on:
- Providers of internet services which allow users to encounter content generated, uploaded or shared by other users (“user-to-user services”);
- Providers of search engines which enable users to search multiple websites and databases (“search services”);
- Providers of internet services on which “provider pornographic content” (pornographic content that is published by a provider and is not user generated) is published or displayed.
The Bill confers new powers on the Office of Communications (OFCOM) enabling them to act as the online safety regulator. This role will include overseeing and enforcing the new regulatory regime.
In this blog we consider whether the three new criminal offences contained in Part 10 of the Bill will afford greater protection to sports persons from trolls such as those who abused the three England players who missed penalties in last year’s Euros 2020 final penalty shoot-out.
Harmful communications offence
This offence will replace s.127(1) of the Communications Act 2003 and s.1 of the Malicious Communications Act 1988 and is intended to make it easier to prosecute individuals who abuse sports persons on-line because the wording of the new offence is broader and the standard of harm has been reduced.
Under cl.150(1) a person commits a harmful communications offence if:
(a) The person sends a message.
(b) At the time of sending the message
(i) There was a real and substantial risk that it would cause harm to a likely audience, and
(ii) The person intended to cause harm to a likely audience, and
(c) The person has no reasonable excuse for sending the message.
A person “sends a message” if the person:
(a) sends, transmits or publishes a communication (including an oral communication) by electronic means, or causes such a communication to be sent, transmitted or published by electronic means, or,
(b) sends a letter or a thing of any other description, or causes a letter or a thing of any other description to be sent
A message consisting of or including a hyperlink to other content includes the content accessed via the hyperlink. Moreover, it does not matter whether the content of the message was created by the person who sent it. But a provider of an internet service by means of which a communication is sent, transmitted or published is not to be regarded as a person who sends a message.
An individual constitutes a likely audience, if at the time the message is sent, it is reasonably foreseeable that an individual:
(a) Would encounter the message, or,
(b) In the online context, would encounter a subsequent message forwarding or sharing the content of the message.
The meaning of “harm” is psychological harm amounting to at least serious distress.
A person who commits a harmful communications offence is liable upon summary conviction, to imprisonment for a term not exceeding the maximum summary term for either way offences or a fine (or both) or upon conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).
False communications offence
Under cl.151(1), a person commits a false communications offence if:
(a) The person sends a message,
(b) The message conveys information that the person knows to be false,
(c) At the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience, and
(d) The person has no reasonable excuse for sending the message
This is a summary only offence, where a person who commits this offence is liable to a term of imprisonment not exceeding the maximum for summary offences or a fine (or both).
Threatening communications offence
Under cl.152(1), a person commits a threatening communications offence if:
(a) The person sends a message
(b) The message conveys a threat of death or serious harm, and
(c) At the time of sending it, the person
(i) Intended an individual encountering the message to fear that the threat would be carried out, or
(ii) Was reckless as to whether an individual encountering the message would fear that the threat would be carried out
Serious harm is defined as:
(a) Serious injury amounting to grievous bodily harm within the meaning of the Offences Against the Person Act 1861,
(c) Assault by penetration within the meaning of section 2 of the Sexual Offences Act 2003, or
(d) Serious financial loss (absence of the defence that the threat was used to reinforce a reasonable demand and the person reasonably believed that the use of the threat was a proper means of reinforcing the demand s.152(3)(a) and (b)).
A person who commits an offence under this section is liable to:
(a) A summary conviction, to imprisonment for a term not exceeding the maximum summary term for either way offences or a fine (or both).
(b) On conviction on indictment, to imprisonment for a term not exceeding five years or a fine (or both).
Whilst the Bill has been broadly welcomed by sporting organisations and should make it easier to prosecute and secure convictions for the type of on-line abuse which far too many sports persons are subjected to, it would be naive to think that this legislation is going to provide significantly greater protection from trolls without the requisite co-operation of internet service providers and law enforcement agencies. And in respect of the latter that means providing the police and others with the requisite financial support. Legislation without the means to enforce it and the will to do so is nothing more than words on a page.
Brian O’Neill QC and Shusmita Deb