There has been much discussion about the threshold at which the new offence in cl 151 of the Online Safety Bill (OSB) might bite. We demonstrate here that the threshold is, as it is intended to be, very high, a long way above mere hurt feelings. Indeed, this new offence would tighten up considerably the regime currently in force – to strike it out would maintain a lower threshold.
The Online Safety Bill, in addition to the regulatory regime, introduces a number of criminal offences, including two communications offences which are a reformulation of the existing s 127 Communications Act 2003 offences. They are not novel but rather seek to ensure that the criminal law is better fitted to the current online environment, and are focussed on the harm caused by these communications.
There are three communications offences, in addition to the cyber-flashing offence (cl 157):
- Harmful communications offence (cl 151)
- False communications offence (cl 152)
- Threatening communications offence (cl 153).
This blog focuses on the first of these – the harmful communications offence.
What does it do?
It is a general harm-based communications offence to replace the current offences under s 1 of the Misuse of Communications Act 1988 and s 127(1) of the Communications Act 2003. It shifts focus from the content of a communication to its potentially harmful effects.
For a person to be prosecuted, there is a three-fold test to apply:
- there must have been a “real and substantial risk” that the message “would cause harm to a likely audience”
- the person sending the message intended that harm; and
- the defendant had no reasonable excuse for sending the message.
These elements must all be proven by the prosecution. The Government has tabled an amendment (NC13) which would exempt a ‘recognised news publisher’ (as defined in cl 50) from the offence in cl 151. At the time of writing, the amendment has not yet been debated.
How does this affect the threshold for criminal liability?
In its proposals to the Government, the Law Commission was clear that the new offences would set a higher threshold for criminal liability than the current rules do (para 1.35, para 2.82), though it may catch some material that would not have been caught but arguably should have been caught (the technically legal; see in particular para 1.5 and 1.6).
The Law Commission justifies raising the threshold not because it would necessarily be illegitimate to criminalise the content, but because it was unnecessary where there is a regulatory regime that deals with ‘harmful but legal’ content (para 2.9). There seems then to be a link between the higher criminal threshold and the existence of the legal but harmful provisions in the Online Safety Bill.
Looking at the threshold, cl 151(4) defines ‘harm’ as “at least serious distress”. According to the Law Commission, the use of the word “serious” was to indicate this raising of the threshold for the criminal offence. In its view, “serious” does not simply mean “more than trivial”. It means a “big, sizeable harm“.
The Law Commission notes that the term “serious distress” already features in the criminal law which allows “the courts to use existing experience and understanding” (para 2.52) as a starting point (the Law Commission expressly noted that this offence should not be bound to the harassment case law, para 2.81). It seems the threshold will be less than that of a ‘recognised medical condition’; nor need it have a substantial adverse effect on a person’s usual day-to-day activities. The Law Commission has also suggested that (once the offence is enacted) non-statutory guidance be given providing a non-exhaustive list of factors to be taken into account (para 2.83).
The Law Commission also views the fact that the offence requires that there be a risk of harm means that the offence is limited to where the harm is foreseeable by the defendant (as opposed to the possibility of actual harm no matter how unlikely). This means that there must be more than a mere risk or possibility of harm. The requirement that there be a likely audience means that the risk of harm can be assessed in relation to the particular characteristics of the audience.
The other two elements noted above also operate to limit the scope of the offence. The DCMS has produced a factsheet on the new offence and provided clarification of how the harmful communications offence is intended to work. The intent to harm – or rather the lack of it – could be seen in the case of a call on Zoom to a doctor during which upsetting medical news is broken. There, the doctor was not intending to cause distress but to inform the patient of the facts.
The factsheet also suggests that political satirical cartoons would be unlikely to be caught by the offence: there is no evidence that the individual intended to cause at least serious distress; moreover, given the importance of political speech, it is likely that the cartoonist would be seen as having a reasonable excuse for sending the message. A similar point could be made about images from warzones.
It also gives the example of a tweet sent to the followers of the person tweeting, which says “I want to make my position on this issue clear, I do not believe that trans individuals are real women.” According to the factsheet, the person tweeting was contributing to a political debate, albeit a controversial one. This means that the person sending the communication has a reasonable excuse for sending it.