This article was originally published on 29 November. Today, 13 January, it has been revealed that 43 Tory MPs are backing a plan to make social media bosses face prison if they fail to protect children online. Culture Secretary Michelle Donelan has said she will be considering MPs ideas and is “not ruling out” changes to the bill.
The Online Safety Bill is an upcoming law that aims to make the internet safer by tackling issues such as child abuse, hate speech and cyber-bullying. The bill, first drafted in May 2021, has suffered from several delays due to changes of government but it will return to the House of Commons in December.
The bill will be a world-first in internet regulation but has faced criticism from safety campaigners, who argue it does not go far enough to protect people (particularly children), and free speech advocates, who say it will infringe on free expression.
While the latest raft of amendments will see more harmful content criminalised, the government has u-turned on the “legal but harmful” aspect of the bill. This would have put a duty on Big Tech companies to stop the proliferation of dangerous content that is not illegal, such as misogyny, some online bullying and content promoting eating disorders.
What has happened to “legal but harmful”?
The biggest (and most controversial) change is the removal of “legal but harmful” content from the bill. Previously, social media giants would have been forced to take down content deemed to be harmful as specified by the government.
Instead, users will now be able to filter out harmful content they do not want to see themselves, while Big Tech will be required to enforce their own terms and conditions, which could prohibit content that falls outside of criminality if they wish.
The Culture Secretary Michelle Donelan has defended the change to Sky News, saying that the original provision could have impacted free speech by creating a “quasi-legal category between illegal and legal”, instigating different rules around online and offline expression.
Previously, the “legal but harmful” categorisation has been criticised by safety campaigners and free speech advocates alike for its ambiguity. While the latter will now likely be happy that the provision has been scrapped, the former will argue that its removal has weakened the bill.
What are the other main changes to the bill?
The government has announced that it will criminalise “deepfake” pornography (in which explicit images or videos are digitally manipulated with someone’s face) and “downblousing” (when photos or videos are secretly taken down someone’s shirt). Alongside this, stronger regulation will also be enforced around sharing any intimate images without consent.
It will also be illegal to share content encouraging self-harm. This brings it in line with sharing content that encourages suicide, which is already illegal.
What are the new offences around violence against women and girls?
Criminalising deepfake porn and downblousing follows several other offences recently announced to tackle misogyny. These include cyber-flashing (sending unsolicited explicit images or “dick pics”), upskirting (taking a photo under someone’s skirt without consent) and extending revenge porn laws to cover threats to share images, as well as the act of sharing them.
The Justice Secretary, Dominic Raab, said: “We must do more to protect women and girls from people who take or manipulate intimate photos in order to hound or humiliate them. Our changes will give police and prosecutors the powers they need to bring these cowards to justice and safeguard women and girls from such vile abuse.”
The government has implemented these changes following recommendations from the Law Commission, which suggested creating stronger offences for sharing non-consensual intimate images.
How will these crimes be assessed?
Campaigners have previously criticised amendments to the Online Safety Bill, such as the new cyber-flashing law, because criminality is focused on “intent” of the perpetrator rather than “consent” of the victim – perpetrators are only prosecuted if they intend to cause “humiliation, alarm or distress” or for their own “sexual gratification”.
Following the Law Commission’s advice, the government has decided to introduce new offences around the sharing of intimate images of other people by focusing on consent instead, which will make it easier to prosecute. It is not currently clear whether this will also apply to cyber-flashing.
There will be a “base offence” for sharing intimate images or videos without consent, with two more serious offences created if images are shared to cause humiliation, alarm or distress, or for sexual gratification. Two further offences will be created for threatening to share images, and for installing equipment that enables images to be taken. Another separate offence is being created for the non-consensual sharing of deepfakes.
The government has not yet announced what the maximum penalty will be for these crimes, but the Law Commission has suggested six months in prison for the “base offence”, and two to three years for the more serious intent-based and sharing offences.
What about self-harm content?
The danger of self-harm content was highlighted by the case of Molly Russell, a 14-year-old schoolgirl who ended her life in 2017. At the inquest in September, the coroner concluded that the “negative effects of online content” had been a contributing factor.
Content that encourages self-harm will be made illegal, bringing it in line with content that promotes suicide, which is already illegal under English law. Previously, it fell under the now-axed “legal but harmful” categorisation. Molly’s father, Ian Russell, is one of the safety campaigners arguing that removing the provision has “[watered] down” the bill.
The government has not yet confirmed what the maximum penalty will be but Donelan has said that the new law will bring “abhorrent trolls” to justice, and that “perpetrators [will] face jail”.
What happens next?
The Online Safety Bill returns to the House of Commons on 5 December. But according to Ofcom, which will be the regulator enforcing the bill, it may not be fully operational until 2024. You can follow the bill’s path through parliament here.