Positive light or fog in the Channel?

If anything graphically illustrates the perilous waters into which we venture when we require online intermediaries to pass judgment on the legality of user-generated content, it is the government’s decision to add S.24 of the Immigration Act 1971 to the Online Safety Bill’s list of “priority illegal content”: user content that platforms must detect and remove proactively, not just by reacting to notifications. Proactive measures could involve scouring the platform for content already uploaded, filtering and blocking at the point of attempted upload, or both.

The political target of the Bill amendment, which the government says it will introduce in the House of Lords, is videos of migrants crossing the Channel in boats. The Secretary of State explained it thus:

“We will also add Section 24 of the Immigration Act 1971 to the priority offences list in Schedule 7. Although the offences in Section 24 cannot be carried out online, paragraph 33 of the Schedule states that priority illegal content includes the inchoate offences relating to the offences that are listed. Therefore aiding, abetting, counselling, conspiring etc those offences by posting videos of people crossing the channel which show that activity in a positive light could be an offence that is committed online and therefore falls within what is priority illegal content. The result of this amendment would therefore be that platforms would have to proactively remove that content.”

We have to assume that this wheeze was dreamed up in some haste, meeting the immediate political imperative to respond to a strongly supported back bench amendment that tried to tack videos of boat crossings on to the Bill’s children’s duties. Now that the dust has settled, at least temporarily, let us take a look at what would be involved in applying the government's proposal.

In view of some of the media commentary, it is worth emphasising that the proposed amendment to the Bill would not create a new offence. It is based on existing accessory liability legislation, which platforms (and indeed search engines) would have to apply proactively.

In a positive light

Where does ‘in a positive light’ come from? Presumably the Secretary of State must have had in mind that if a video shows the activity of crossing the Channel to gain illegal entry to the UK in a negative light – thus tending to deter the activity - that cannot amount to counselling (in modern language, encouraging) an offence of entering (or attempting to enter) the UK illegally. So far so good. But that does not mean we should jump to the conclusion that ‘in a positive light’ is sufficient to amount to encouragement.

The offence of aiding, abetting, counselling etc a Section 24 offence applies not only to videos but to any kind of communication, whether on social media, simple discussion forums, websites or elsewhere.

You do not have to go far to find studies suggesting that illegal immigration can have positive benefits to an economy. Does supporting that position in an online discussion about UK immigration put the activity of illegal entry to the UK in a positive light? Quite possibly. Does it (in the legal sense) encourage an offence of illegal entry to the UK? Surely not. That is a far cry from intentionally encouraging a prospective illegal migrant to commit an illegal entry offence.

The idea that someone might be prosecuted for voicing that kind of opinion in a general online discussion is (one would hope) absurd. It brings to mind the comment of Lord Scott in Rusbridger v Attorney-General, a case about the moribund Section 3 of the Treason Felony Act 1848:

“[Y]ou do not have to be a very good lawyer to know that to advocate the abolition of the monarchy and its replacement by a republic by peaceful and constitutional means will lead neither to prosecution nor to conviction. All you need to be is a lawyer with commonsense.”

In any event legislation must, so far as it is possible to do so, be read and given effect in a way which is compatible with the European Convention on Human Rights right of freedom of expression (S.3 Human Rights Act 1998; albeit the Bill of Rights Bill would repeal that provision).

The Secretary of State’s proposal has reportedly sparked fears among humanitarian organisations of consequences if they share footage that may call into question the policing of Channel crossings. The Home Office, for its part, has said that they would not be penalised. That is an understandable view if all the legal elements of an encouragement offence are properly taken into account.

Nevertheless, it is not so far-fetched a notion that an online platform, tasked by the Online Safety Bill proactively to detect and remove user content that encourages an illegal entry offence, might consider itself duty-bound to remove content that in actual fact would not result in prosecution or a conviction in court. There are specific reasons for this under the Bill, which contrast with prosecution through the courts.

Prosecution versus the Bill's illegality duties

First the platform’s removal duty under the Bill kicks in not if the user’s content is illegal beyond reasonable doubt, or manifestly illegal, but if the platform has ‘reasonable grounds to infer’ illegality – on the face of it a significantly lower standard. Whether this standard is compatible with Article 10 of the European Convention on Human Rights is questionable, but nevertheless it is what the Bill says. The Bill would inevitably require platforms to remove some content that is in fact legal.

Second, the Bill requires platforms to act on all the information reasonably available to the platform: a far more limited factual basis than a court. At least for an automated system that would be likely to be the content of the post and any related information on the platform (such as information indicating the nature and identity of the poster). It excludes any extrinsic contextual information not reasonably available to the platform. 

Further, the platform can take into account the possibility of a defence only if it has reasonable grounds to infer that one may successfully be relied upon. For many defences (such as reasonable excuse) any grounds for a defence will not necessarily be apparent from the information available to the platform, in which case the possibility of a defence must be ignored. 

The platform’s assessment of illegality may thus depend on the happenstance of whether there is anything in the post itself, or its surrounding data, that points to the possibility of a successful defence. For some widely drawn offences intent and available defences are the most significant elements in determining legality, and are integral to the balance drawn by the legislature. This, we shall see, is of particular relevance to the encouragement and assistance offences under the Serious Crime Act 2007.

Third, the task of a platform is not to second-guess whether the authorities would prosecute, but to decide whether it has reasonable grounds to infer that the content falls within the letter of the law. Whilst the Bill makes numerous references to proportionality, that does not affect the basis on which the platform must determine illegality. That is a binary, yes or no assessment. There is no obvious room for a platform to conclude that something is only a little bit illegal, or to decide that, once detected, some content crossing the ‘reasonable grounds to infer’ threshold could be left up. Certainly the political expectation is that any detected illegal content will be removed.

If that is right, the assessment that platforms are required to make under the Bill lacks the anything akin to the ameliorating effect of prosecutorial discretion on the rough edges of the criminal law. Conversely to build such discretion, even principles-based, into the decision-making required of platforms would hardly be a solution either, especially not at the scale and speed implied by automated proactive detection and removal obligations. We do not want platforms to be arbiters of truth, but to ask them (or their automated systems) to be judges of the public interest or of the seriousness of offending would be a recipe for guesswork and arbitrariness, even under the guidance of Ofcom.

If this seems like a double bind, it is. It reflects a fundamental flaw in the Bill’s duty of care approach: the criminal law was designed to be operated within the context of the procedural protections provided by the legal system, and to be adjudged by courts on established facts after due deliberation; not to be the subject of summary justice dispensed on the basis of incomplete information by platforms and their automated systems tasked with undertaking proactive detection.

Fourth, we shall see that in some cases the task required of the platform appears to involve projection into the future on hypothetical facts. Courts are loath to assess future criminal illegality on a hypothetical basis. Their task at trial is to determine whether the events that are proved in fact to have occurred amounted to an offence.

Fifth, inaccuracy. False positives are inevitable with any moderation system - all the more so if automated filtering systems are deployed and are required to act on incomplete information (albeit Ofcom is constrained to some extent by considerations of accuracy, effectiveness and lack of bias in its ability to recommend proactive technology in its Codes of Practice). Moreover, since the dividing line drawn by the Bill is not actual illegality but reasonable grounds to infer illegality, the Bill necessarily deems some false positives to be true positives.

Sixth, the involvement of Ofcom. The platform would have the assistance of a Code of Practice issued by Ofcom. That would no doubt include a section describing the law on encouragement and assistance in the context of the S.24 1971 Act illegal entry offences, and would attempt to draw some lines to guide the platform’s decisions about whether it had reasonable grounds to infer illegality.

An Ofcom Code of Practice would carry substantial legal and practical weight. That is because the Bill provides that taking the measures recommended in a Code of Practice is deemed to fulfil the platform’s duties under the Bill. Much would therefore rest on Ofcom’s view of the law of encouragement and assistance and what would constitute reasonable grounds to draw an inference of illegality in various factual scenarios.

Seventh, the involvement of the Secretary of State. Ofcom might consider whether to adopt the Secretary of State’s ‘in a positive light’ interpretation. As the Bill currently stands, if the Secretary of State did not approve of Ofcom’s recommendation for public policy reasons s/he could send the draft Code of Practice back to Ofcom to with a direction to modify – and, it seems, keep on doing so until s/he was happy with its contents.

Even if that controversial power of direction were removed from the Bill, Ofcom would still have significant day to day power to adopt interpretations of the law and apply them to platforms’ decision-making (albeit Ofcom’s interpretations would in principle be open to challenge by judicial review).

As against those seven points, in fulfilling its duties under the Bill a platform is required to have particular regard to the importance of protecting users’ right to freedom of expression within the law. ‘Within the law’ might suggest that the duty has minimal relevance to the illegality duties, especially when clause 170 sets out expressly how platforms are to determine illegality. It provides that if the reasonable grounds to infer test is satisfied, the platform must treat the content as illegal.

The government’s ECHR Memorandum suggests that the ‘have particular regard’ duty may have some effect on illegality determination, but it does not explain how it does so in the face of the express provisions of clause 170. It also inaccurately paraphrases clause 18 by omitting ‘within the law’:

“34. Under clause 18, all in-scope service providers are required to have regard to the importance of protecting freedom of expression when deciding on and implementing their safety policies and procedures. This will include assessments as to whether content is illegal or of a certain type and how to fulfil its duties in relation to such content. Clause 170 makes clear that providers are not required to treat content as illegal content (i.e. to remove it from their service) unless they have reasonable grounds to infer that all elements of a relevant offence are made out. They must make that inference on the basis of all relevant information reasonably available to them.”

That is all by way of lengthy preliminary. Now let us delve into how a platform might be required to go about assessing the legality of a Channel dinghy video under the Accessories and Abettors Act 1861, then for the companion encouragement and assistance offences under the Serious Crime Act 2007.

Let us assume that the Secretary of State is right: that posting a video of people crossing the Channel in dinghies, which shows that activity in a positive light, can in principle amount to encouraging an illegal entry offence. In the interests of simplicity, I will ignore the Secretary of State’s reference to conspiracy. How should a platform go about determining illegality?

Spoiler alert: the process is more complicated and difficult than the Secretary of State’s pronouncement might suggest. And in case anyone is inclined to charge me with excessive legal pedantry, let us not forget that the task that the Bill expressly requires a platform to undertake is to apply the rules laid down in the Bill and in the relevant underlying offences. The task is not to take a rough and ready ‘that looks a bit dodgy, take it down’, or ‘the Home Secretary has complained about this content so we’d better remove it’ approach. Whether what the Bill requires is at all realistic is another matter.

Aiding, abetting and counselling – the 1861 Act

Aiding, abetting and counselling (the words used by the Secretary of State) is the language of the 1861 Act: “Whosever shall aid, abet, counsel or procure the commission of any indictable offence … shall be liable to be tried, indicted and punished as a principal offender.”

One of the most significant features of accessory liability under the 1861 Act is that there can be no liability for aiding, abetting, counselling or procuring unless and until the principal offence has actually occurred. Whilst the aiding, abetting etc does not have to cause the principal offence that occurred, there has to be some connecting link with it. As Toulson LJ put it in Stringer:

“Whereas the provision of assistance need not involve communication between D and P, encouragement by its nature involves some form of transmission of the encouragement by words or conduct, whether directly or via an intermediary. An un-posted letter of encouragement would not be encouragement unless P chanced to discover it and read it. Similarly, it would be unreal to regard P as acting with the assistance or encouragement of D if the only encouragement took the form of words spoken by D out of P's earshot.”

Timing This gives rise to a timing problem for a platform tasked with assessing whether a video is illegal. For illegality to arise under the 1861 Act the video must in fact have been viewed by someone contemplating an illegal entry offence, the video would have to have encouraged them to enter the UK illegally, and they would have to have proceeded to do so (or attempt to do so).

Absent those factual events having taken place, there can be no offence of aiding and abetting. The aiding and abetting offence would further require the person posting the video to have intended the person contemplating illegal entry to view the video and to have intended to encourage their actual subsequent actual or attempted illegal entry.

Thus if a platform is assessing a video that is present on the platform, in order to adjudge the video to be illegal it would at a minimum have to consider how long it has been present on the platform. That is because there must be reasonable grounds to infer both that a prospective migrant has viewed it and that since doing so that person has already either entered the UK illegally or attempted to do so. Otherwise no principal offence has yet occurred and so no offence of aiding and abetting the principal offence can have been committed by posting the video.

It may in any case be a nice question whether, in the absence of any evidence available to the platform that a prospective migrant has in fact viewed the video, the platform would have reasonable grounds to infer the existence of any of these facts. To do so would appear to involve making an assumption of someone viewing the video and of a connected illegal entry offence that the assumed viewing has in fact encouraged. 

For a post blocked by filtering at the point of upload (if that were considered feasible) the timing issue becomes a conundrum. Since no-one can have viewed a blocked video, none of the required subsequent events can possibly have occurred. Nor does the law provide any offence of attempting to aid and abet a 1971 Act offence.

Thus at least for upload filtering it appears that either there is a conceptual bar to a platform determining that a video blocked at the point of upload amounts to aiding abetting, or the platform would (if the Bill permits it) have to engage in some legal time travel and assess illegality on a hypothetical future basis.

A basis on which a platform could be required to assess such hypothetical illegality may be provided by Clause 53(14)(b) of the Bill, which in effect provides that illegal content includes content that would be illegal if it were present on the platform. 

Even then, a video present on the platform only as a legal fiction cannot as a matter of fact be connected to any subsequent actual encouraged primary offence. Deemed presence would therefore have to be notionally extended for a sufficient period to hypothesise the factual events necessary for completion of the aiding and abetting offence: that a notional prospective migrant has hypothetically viewed the video present on the service, hypothetically been encouraged by the video to commit or attempt an illegal entry offence, and hypothetically then done so.

Even if any of this hypothesising is permissible under the Bill, whether it could provide reasonable grounds to infer illegality is a matter for conjecture. The need to hypothesise the existence of an actual illegal entry offence would never arise in a prosecution in court, since for a prosecution of the accessory to succeed it must be proved that the principal offence has taken place. In court, therefore, the assessment of accessory liability will always be within the context of a known past set of facts that are proved to have amounted to an offence by a principal.

Intent The platform would also have to consider whether it has reasonable grounds to infer that the poster had the necessary intention to aid, abet etc the actual or attempted offence.

In court the prosecution would have to prove, beyond reasonable doubt, that the poster intended a viewer of the video to obtain or attempt illegal entry to the UK, the poster having knowledge of the facts that would and did render the principal’s conduct criminal. (‘Did’, because there can be no conviction for aiding and abetting unless the principal offence is proved to have taken place.)

That would raise the question of whether generalised knowledge of the existence of people crossing the Channel who might view the video and be encouraged by it would be sufficient to satisfy the knowledge requirement, when the poster would have been unaware of the particular individual who had in fact viewed the video and then committed the offence. Whilst it might be legitimate to find intent where the video is specifically promoting illegal crossings to prospective migrants, such a finding would seem to be highly debatable if the video did not offer targeted encouragement, even if it portrayed such activities in a positive light.

How should a platform decide whether the poster of the video had the requisite intent to constitute an aiding and abetting offence? The Bill requires the platform to apply the ‘reasonable grounds to infer’ test. It has to make that assessment on the basis of all the information reasonably available to it. That would likely bring in to account not only the content of the video, but any surrounding text in the post and (if apparent) the nature of the person posting. The intent of a video advertising illegal Channel crossings might be clear, the intent of a bare clip of a dinghy carrying migrants (even if it showed smiling occupants and was accompanied by upbeat music) not so much.

Serious Crime Act 2007 – encouraging and assisting

We started by considering aiding and abetting under the 1861 Act because that is what the language used by the Secretary of State appeared to allude to. That is not, however, the end of the story. The Serious Crime Act 2007 enacted encouragement and assistance offences that, unlike aiding and abetting, do not depend on the principal offence actually taking place. They therefore avoid the time travel and hypothesising contortions involved in applying the Bill to the 1861 Act.

Also unlike aiding and abetting, an attempt to commit an encouragement or assistance offence under the 2007 Act is itself an offence. In principle therefore, a foiled attempt to upload a video capable of constituting an encouragement or assistance offence under the 2007 Act could itself constitute an offence.

By way of illustration, consider the simplest 2007 Act offence, S.44:

“(1) A person commits an offence if—

(a) he does an act capable of encouraging or assisting the commission of an offence; and

(b) he intends to encourage or assist its commission.

(2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.”

So a platform tasked with adjudging whether the video is illegal would have to consider not only whether posting the video is ‘capable’ of encouraging the commission of an unlawful entry offence, but also whether the person who posted it intended to encourage the commission of the offence; bearing in mind that a mere foreseeable consequence does not count as intent. (That, it might be thought, rules out any but the most targeted advertising or promotional videos.)

How should a platform go about these two tasks? As with the 1861 Act aiding and abetting offences, part of the answer lies in Clause 170 of the Bill, which specifies the standard of ‘reasonable grounds to infer’ based on ‘all information reasonably available’ to the platform.

The analysis would be based on the same information as for aiding and abetting, but without the need to show (or hypothesise) that anyone actually viewed or acted upon the video. It is enough if publication of the video is capable of encouraging the offence. However, the express exclusion of a merely foreseeable consequence would limit the inference of intention that it is reasonable for the platform to draw.

Defence of reasonable conduct Unlike for the 1861 Act aiding and abetting offence, the 2007 Act offences provide a defence of ‘reasonable conduct’. This comes in two different versions:

(1) that the defendant knew that certain circumstances existed and that it was reasonable for him to act as he did in those circumstances; or

(2) that he believed certain circumstances to exist, that his belief was reasonable, and that it was reasonable for him to act as he did in the circumstances as he believed them to be.

Factors that the 2007 Act states have to be considered in relation to reasonableness include the seriousness of the offence and any purpose for which the defendant claims to have been acting. A 2007 Act defence will succeed in court if the defendant proves it on the balance of probabilities.

The information on which the possibility of a reasonableness defence depends may well be extrinsic to the platform or its automated systems. The purpose for which a user has acted is something within the user’s knowledge and belief and may not be apparent from the post itself.

As already mentioned, this is significant because the platform cannot consider the possibility of a defence unless, on the basis of all relevant information that is reasonably available to it, it has reasonable grounds to infer that a defence may be successfully relied upon (in the context of the 2007 Act defence: successful on the balance of probabilities).

In determining what information is reasonably available to the provider, the following factors, in particular, are relevant: (a) the size and capacity of the provider, and (b) whether a judgement is made by human moderators, by means of automated systems or processes or by means of automated systems or processes together with human moderators.

The probable net result, for an automated system, is that the possibility of a defence is to be ignored unless it is apparent from the information processed by the system. Yet for the 2007 Act encouragement and assistance offences, the defences are an integral element of the offence, designed to balance the potentially overreaching effects of inchoate liability founded on mere capability.

In reality, however, it smacks of fantasy to imagine that a platform, whether employing automated systems, human moderators, or a combination of the two, would be capable of applying rules of this nuance and complexity, particularly in real or near real time.

The broader issue

These problems with the Bill’s illegality duties are not restricted to migrant boat videos or immigration offences, although the Secretary of State’s statement has provided an unexpected opportunity to illustrate them. They are of general application and are symptomatic of a flawed assumption at the heart of the Bill: that it is a simple matter to ascertain illegality just by looking at what the user has posted. There will be some offences for which this is possible (child abuse images being the most obvious), and other instances where the intent of the poster is clear. But for the most part that will not be the case, and the task required of platforms will inevitably descend into guesswork and arbitrariness: to the detriment of users and their right of freedom of expression.

It is strongly arguable that if an illegality duty is to be placed on platforms at all, the threshold for illegality assessment should not be ‘reasonable grounds to infer’, but clearly or manifestly illegal. Indeed, that may be what compatibility with the Article 10 right of freedom of expression requires.

Twenty questions about the Online Safety Bill

Before Christmas Culture Secretary Michelle Donelan invited members of the public to submit questions about the Online Safety Bill, which she will sit down to answer in the New Year. 

Here are mine. 

1. A volunteer who sets up and operates a Mastodon instance in their spare time appears to be the provider of a user-to-user service. Is that correct?

2. Alice runs a personal blog on a blogging platform and is able to decide which third party comments on her blogposts to accept or reject. Is Alice (subject to any Schedule 1 exemptions) the provider of a user-to-user service in relation to those third party comments?

3. Bob runs a blog on a blogging platform. He has multiple contributors, whom he selects. Is Bob the provider of a user-to-user service in relation to their contributions?

4. Is a collaborative software development platform the provider of a user-to-user service?

5. The exclusion from “regulated user-generated content” extends to comments on comments (Clause 49(6)). But a facility enabling free form ‘comments on comments’ appears to disapply the Sch 1 para 4 limited functionality user-to-user service exemption. Is that correct? If so, what is the rationale for the difference? Would, for example, a newspaper website with functionality that enabled free form ‘comments on comments’ therefore not enjoy exclusion from scope under Sch 1 para 4?

6. Does the Sch 1 para 4 limited functionality exemption apply to goods retailers’ own-product review sections? If so, does it achieve that when it refers only to content and not to the goods themselves?

7. Would a site that enables academics to upload papers, subject to prior review by the site operator, be a user-to-user service? 

8. Cl 204(2)(e) appears to suggest that a multiplayer online game would be a user-to-user service by virtue of player interaction alone, whether or not there is an inter-player chat or similar facility. Is that right?

9. Carol sets up and operates a voluntary online neighbourhood watch forum for her locality. Would Carol be a provider of a user-to-user service? 

10. Dan operates a blockchain node. Would Dan be a provider of a user-to-user service?

11. Grace chairs a public meeting using a video platform. Grace has control over who can join the meeting. Would Grace be a provider of a user-to-user service in relation to that meeting?

12. The threshold that the Bill requires a platform to apply when determining criminal illegality is ‘reasonable grounds to infer’. The criminal standard of proof is ‘beyond reasonable doubt’. Would not the Bill’s lower threshold inevitably require removal (at least for proactive obligations) of content that is in fact legal? For automated real time systems would that not occur at scale?

13. The Bill requires a platform to adjudge illegality on the basis of all relevant information reasonably available to it. Particularly for proactive automated processes, that will be limited to what users have posted to the platform. Yet often, illegality depends crucially on extrinsic contextual information that is not available to the platform. How could the adjudgment required by the Bill thus not be arbitrary?

14. For many offences the question of illegality is likely to revolve mainly around intent and available defences. The Bill requires platforms to assess illegality on the basis that the possibility of a defence is to be taken into account only if the platform has reasonable grounds to infer that a defence may successfully be relied upon. Yet the information from which the possibility of a defence (such as reasonable excuse) might be inferred will very often be extrinsic context that, especially for proactive obligations, is not available to a platform. Would that not inevitably require removal of content that is in fact legal? For automated real time systems would that not occur at scale?

15. The Bill requires platforms to have particular regard to the importance of protecting users’ right to freedom of expression ‘within the law’. Does that modify the express requirements of Clause 170 as to how a platform should assess illegality? If so, how?

16. The government’s European Convention on Human Rights Memorandum contains no discussion of the Bill’s illegality duties as a form of prior restraint. Nor does it address the human rights implications of the ‘reasonable grounds to infer’ clause, which was introduced later. Will the government issue a revised Memorandum?

17. Is it intended that the risks of harm to individuals to be mitigated and managed under Clause 9(2)(c) should be limited to those arising from illegality identified in the illegality risk assessment? If so, how does the Bill achieve that?

18. The Bill contains powers to require private messaging services to use accredited technology to identify CSEA content. It also contains an obligation to report all new detected material to the National Crime Agency. The Explanatory Notes state that services will be required to report all and any available information relating to instances of CSEA, including any that help identify a perpetrator or victim. 

The White Paper noted that “Many children and young people take and share sexual images. Creating, possessing, copying or distributing sexual or indecent images of children and young people under the age of 18 is illegal, including those taken and shared by the subject of the image.” Does this mean that an under-18 consensually taking and sharing an indecent selfie on a private messaging platform would automatically be reported to the National Crime Agency if the image is detected by the platform?

19. What are the estimated familiarisation and compliance costs for an in-scope small business or voluntary user-to-user service? What is the calculation of the estimated costs? 

20. The Law Commission in 2018 stated that the common law public nuisance offence applied to online communications. The statutory replacement in s.78 of the Police, Crime, Sentencing and Courts Act 2022 does so too. Could a platform’s reactive duty under Cl. 9, combined with Cl. 170, require it to determine whether it has reasonable grounds to infer that a user’s post creates a risk of causing serious annoyance to a section of the public?

(Some of) what is legal offline is illegal online

From what feels like time immemorial the UK government has paraded its proposed online harms legislation under the banner of ‘What is Illegal Offline is Illegal Online’. As a description of what is now the Online Safety Bill, the slogan is ill-fitting. The Bill contains nothing that extends to online behaviour a criminal offence that was previously limited to offline. 

That is for the simple reason that almost no such offences exist. An exception that proves the rule is the law requiring imprints only on physical election literature, a gap that has been plugged not by the Online Safety Bill but by the Elections Act 2022.  

If the slogan is intended to mean that since what is illegal offline is illegal online, equivalent mechanisms should be put in place to combat online illegality, that does not compute either. As we shall see, the Bill's approach differs significantly from offline procedures for determining the illegality of individual speech - not just in form and process, but in the substantive standards to be applied.  

Perhaps in implicit recognition of these inconvenient truths, the government’s favoured slogan has undergone many transformations:

- “We will be consistent in our approach to regulation of online and offline media.” (Conservative Party Manifesto, 18 May 2017)

- “What is unacceptable offline should be unacceptable online.” (Internet Safety Strategy Green Paper, October 2017)

- “Behaviour that is illegal offline should be treated the same when it’s committed online.” (Then Digital Minister Margot James, 1 November 2018)

- “A world in which harms offline are controlled but the same harms online aren’t is not sustainable now…” (Then Culture Secretary Jeremy Wright QC, 21 February 2019) 

- “For illegal harms, it is also important to ensure that the criminal law applies online in the same way as it applies offline” (Online Harms White Paper, April 2019)

- "Of course... what is illegal offline is illegal online, so we have existing laws to deal with it." (Home Office Lords Minister Baroness Williams, 13 May 2020)

- “If it’s unacceptable offline then it’s unacceptable online” (DCMS, tweet 15 December 2020)

- "If it is illegal offline, it is illegal online.” (Then Culture Secretary Oliver Dowden, House of Commons 15 December 2020)

- “The most important provision of [our coming online harms legislation] is to make what's illegal on the street, illegal online” (Then Culture Secretary Oliver Dowden, 29 March 2021)

- “What's illegal offline should be regulated online.” (Damian Collins, then Chair of the Joint Pre-Legislative Scrutiny Committee, 14 December 2021)

- “The laws we have established to protect people in the offline world, need to apply online as well.” (Then former DCMS Minister Damian Collins MP, 2 Dec 2022) 

Now, extolling its newly revised Bill, the government has reverted to simplicity. DCMS’s social media infographics once more proclaim that ‘What is illegal offline is illegal online’.

The underlying message of the slogan is that the Bill brings online and offline legality into alignment. Would that also mean that what is legal offline is (or should be) legal online?  The newest Culture Secretary Michelle Donelan appeared to endorse that when announcing the abandonment of ‘legal but harmful to adults’: "However admirable the goal, I do not believe that it is morally right to censor speech online that is legal to say in person." 

Commendable sentiments, but does the Bill live up to them? Or does it go further and make illegal online some of what is legal offline? I suggest that in several respects it does do that.

Section 127 – the online-only criminal offence

First, consider illegality in its most commonly understood sense: criminal offences.

The latest version of the Bill scraps the previously proposed new harmful communications offence, reinstating S.127(1) of the Communications Act 2003 which it would have replaced. The harmful communications offence, for all its grievous shortcomings, made no distinction between offline and online. S.127(1), however, is online only. Moreover, it is more restrictive than any offline equivalent.

S.127(1) is the offence that, notoriously, makes it an offence to send by means of a public electronic communications network a “message or other matter that is grossly offensive or of an indecent, obscene or menacing character”. It is difficult to be sure of its precise scope – indeed one of the main objections to it is the vagueness inherent in ‘grossly offensive’. But it has no direct offline counterpart. 

The closest equivalent is the Malicious Communications Act 1988, also now to be reprieved. The MCA applies to both offline and online communications. Whilst like S.127(1) it contains the ‘grossly offensive” formulation, it is narrower by virtue of a purpose condition that is absent in S.127(1). Also the MCA offence appears not to apply to generally available, non-targeted postings on an online platform (Law Commission Scoping Report 2018, paras 4.26 to 4.29). That leaves S.127(1) not only broader in substance, but catching many kinds of online communication to which the MCA does not apply at all.

Para 4.63 of the Law Commission Scoping Report noted: “Indeed, as subsequent Chapters will illustrate, section 127 of the CA 2003 criminalises many forms of speech that would not be an offence in the “offline” world, even if spoken with the intention described in section 127.”

For S.127(1) that situation will be continued - at least while the government gives further consideration to the criminal law on harmful communications. But although the new harmful communications offence was rightly condemned, was the government really faced with having to make a binary choice between frying pan and fire?

Online liability to have content filtered or removed

Second, we have illegality in terms of ‘having my content compulsorily removed’.

This is not illegality in the normal sense of liability to be prosecuted and found guilty of a criminal offence. Nor is it illegality in the sense of being sued and found liable in the civil courts. It is more akin to an author having their book seized with no further sanction. We lawyers may debate whether this is illegality properly so called. To the user whose online post is filtered or removed it will certainly feel like it, even though no court has declared the content illegal or ordered its seizure.

The Bill creates this kind of illegality (if it be such) in a novel way: an online post would be filtered or removed by a platform because it is required to do so by virtue of a preventative or reactive duty of care articulated in the Bill. This creature of statute has - for speech - no offline equivalent. See discussion here and here. 

The online-offline asymmetry does not stop there. If we dig more deeply into a comparison with criminal offences we find other ways in which the Bill’s illegality duty treats online content more restrictively than offline. 

Two features stand out, both stemming from the Bill's recently inserted clause setting out how online platforms should adjudge the illegality of users' content.

The online illegality inference engine

First, in contrast to the criminal standard of proof – beyond reasonable doubt – the platform is required to find illegality if it has ‘reasonable grounds to infer’ that the elements of the offence are present.  That applies both to factual elements and to any required purpose, intention or other mental element.

The acts potentially constituting an offence may be cast widely, in which event the most important issues are likely to be intent and whether the user has an available defence (such as, in some cases, reasonable excuse). 

Under the Bill, unless the platform has information on the basis of which it can infer that a defence may successfully be relied on, the possibility of a defence is to be left out of consideration.  That leads into the second feature.

The online information vacuum

The Bill requires platforms to determine illegality on the basis of information reasonably available to them. But how much (or little) information is that likely to be?  

Platforms will be required to make decisions on illegality in a comparative knowledge vacuum. The paucity of information is most apparent in the case of proactive, automated real time filtering. A system can work only on user content that it has processed, which inevitably omits extrinsic contextual information. 

For many offences, especially those in which defences such as reasonable excuse bear the main legality burden, such absent contextual information would otherwise be likely to form an important, even decisive, part of determining whether an offence has been committed. 

For both of these reasons the Bill’s approach to online would inevitably lead to compulsory filtering and removal of legal online content at scale, in a way that has no counterpart offline. It is difficult to see how a requirement on platforms to have regard (or particular regard, as a proposed government amendment would have it) to the importance of protecting users’ right to freedom of expression within the law could act as an effective antidote to express terms of the legislation that spell out how platforms should adjudge illegality.

Online prior restraint

These two features exist against the background that the illegality duty is a form of prior restraint: the Bill requires content filtering and removal decisions to be made before any fully informed, fully argued decision on the merits takes place (if it ever would). A presumption against prior restraint has long formed part of the English common law and of human rights law. For online, no longer.

How well do you know the Online Safety Bill?

With the Online Safety Bill returning to the Commons next month, this is an opportune moment to refresh our knowledge of the Bill.  The labels on the tin hardly require repeating: children, harm, tech giants, algorithms, trolls, abuse and the rest. But, to beat a well-worn drum, what really matters is what is inside the tin. 

Below is a miscellany of statements about the Bill: familiar slogans and narratives, a few random assertions, some that I have dreamed up to tease out lesser-known features. True, false, half true, indeterminate? Click on the expandable text to find out.  

The Bill makes illegal online what is illegal offline.

No. We have to go a long way to find a criminal offence that does not already apply online as well as offline (other than those such as driving a car without a licence, which by their nature can apply only to the physical world). One of the few remaining anomalies is the paper-only requirement for imprints on election literature – a gap that will be plugged when the relevant provisions of the Elections Act 2022 come into force.

Moreover, in its fundamentals the Bill departs from the principle of online-offline equivalence. Its duties of care are extended in ways that have no offline comparable. It creates a broadcast-style Ofcom regulatory regime that has no counterpart for individual speech offline: regulation by discretionary regulator rather than by clear, certain, general laws.

The real theme underlying the Bill is far removed from offline-online equivalence. It is that online speech is different from offline: more reach, more persistent, more dangerous and more in need of a regulator’s controlling hand.

Under the Bill's safety duty, before removing a user's post a platform will have to be satisfied to the criminal standard that it is illegal.

No. The current version of the Bill sets ‘reasonable grounds to infer’ as the platform’s threshold for adjudging illegality.

Moreover, unlike a court that comes to a decision after due consideration of all the available evidence on both sides, a platform will be required to make up its (or its algorithms') mind about illegality on the basis of whatever information is available to it, however incomplete that may be. For proactive monitoring of ‘priority offences’, that would be the user content processed by the platform’s automated filtering systems. The platform would also have to ignore the possibility of a defence unless they have reasonable grounds to infer that one may be successfully relied upon.

The mischief of a low threshold is that legitimate speech will inevitably be suppressed at scale under the banner of stamping out illegality. In a recent House of Lords debate Lord Gilbert, who chaired the Lords Committee that produced a Report on Freedom of Expression in the Digital Age, asked whether the government had considered a change in the standard from “reasonable grounds to believe” to “manifestly illegal”.  The government minister replied by referring to the "reasonable grounds to infer" amendment, which he said would protect against both under-removal and over-removal of content.

The Bill will repeal the S.127 Communications Act 2003 offences.

Half true. Following a recommendation by the England and Wales Law Commission the Bill will replace both S.127 (of Twitter Joke Trial notoriety) and the Malicious Communications Act 1988 with new offences, notably sending a harmful communication.

However, the repeal of S.127 is only for England and Wales. S.127 will continue in force in Scotland. As a result, for the purposes of a platform’s illegality safety duty the Bill will deem the remaining Scottish S.127 offence to apply throughout the UK. So in deciding whether it has reasonable grounds to infer illegality a platform would have to apply both the existing S.127 and its replacement. [Update: the government announced on 28 November 2022 that the 'grossly offensive' offences under S.127(1) and the MCA 1988 will no longer be repealed, following its decision to drop the new harmful communications offence.] 

A platform may be required to adjudge whether a post causes spiritual injury.

True. The National Security Bill will create a new offence of foreign interference. One route to committing the offence involves establishing that the conduct involves coercion. An example of coercion is given as “causing spiritual injury to, or placing undue spiritual pressure on, a person”.

The new offence would be designated as a priority offence under the Online Safety Bill, meaning that platforms would have to take proactive steps to prevent users encountering such content.

A platform may be required to adjudge whether a post represents a contribution to a matter of public interest.

True. The new harmful communications offence (originating from a recommendation by the Law Commission) provides that the prosecution must prove, among other things, that the sender has no reasonable excuse for sending the message. Although not determinative, one of the factors that the court must consider (if it is relevant in a particular case) is whether the message is, or is intended to be, a contribution to a matter of public interest.

A platform faced with a complaint that a post is illegal by virtue of this offence would be put in the position of making a judgment on public interest, applying the standard of whether it has reasonable grounds to infer illegality. During the Commons Committee stage the then Digital Minister Chris Philp elaborated on the task that a platform would have to undertake. It would, he said, perform a "balancing exercise" in assessing whether the content was a contribution to a matter of public interest. [Update: the government announced on 28 November 2022 that the proposed new harmful communications offence will be dropped.]

The House of Lords Communications and Digital Committee Report on Freedom of Speech in the Digital Age contains the following illuminating exchange: 'We asked the Law Commission how platforms’ algorithms and content moderators could be expected to identify posts which would be illegal under its proposals. Professor Lewis told us: “We generally do not design the criminal law in such a way as to make easier the lives of businesses that will have to follow it.”' However, it is the freedom of speech of users, not businesses, that is violated by the arbitrariness inherent in requiring platforms to adjudge vague laws.

Platforms would be required to filter users’ posts.

Highly likely, at least for for some platforms. All platforms would be under a duty to take proportionate proactive steps to prevent users encountering priority illegal content, and (for services likely to be accessed by children) to prevent children from encountering priority content harmful to children. The Bill gives various examples of such steps, ranging from user support to content moderation, but the biggest clues are in the Code of Practice provisions and the enforcement powers granted to Ofcom.

Ofcom is empowered to recommend in a Code of Practice (if proportionate for a platform of a particular kind or size) proactive technology measures such as algorithms, keyword matching, image matching, image classification or behaviour pattern detection in order to detect publicly communicated content that is either illegal or harmful to children. Its enforcement powers similarly include use of proactive technology. Ofcom would have additional powers to require accredited proactive technology to be used in relation to terrorism content and CSEA (including, for CSEA, in relation to private messages).

The Bill regulates platforms, not users.

False dichotomy. The Bill certainly regulates platforms, but does so by pressing them into service as proxies to control content posted by users. The Bill thus regulates users at one remove. It also contains new criminal offences that would be committed directly by users.

The Bill outlaws hurting people's feelings.

No, but the new harmful communications offence comes close. It would criminalise sending, with no reasonable excuse, a message carrying a real and substantial risk that it would cause psychological harm - amounting to at least serious distress - to a likely member of the audience, with the intention of causing such harm. There is no requirement that the response of a hypothetical seriously distressed audience member should be reasonable. One foreseeable hypersensitive outlier is enough. Nor is there any requirement to show that anyone was actually seriously distressed.

The Law Commission, which recommended this offence, considered that it would be kept within bounds by the need to prove intent to cause harm and the need to prove lack of reasonable excuse, both to the criminal standard. However, the standard to which platforms will operate in assessing illegality is reasonable grounds to infer. [Update: the government announced on 28 November 2022 that the proposed new harmful communications offence will be dropped.]

The Bill also refers to psychological harm in other contexts, but without defining it further. The government intends that psychological harm should not be limited to a medically recognised condition.

The Bill recriminalises blasphemy.

Quite possibly. Blasphemy was abolished as a criminal offence in England and Wales in 2008 and in Scotland in 2021. The possible impact of the harmful communications offence (see previous item) has to be assessed against the background that people undoubtedly exist who experience serious distress (or at least claim to do so) upon encountering content that they regard as insulting to their religion. [Update: the government announced on 28 November 2022 that the proposed new harmful communications offence will be dropped.]

The Bill is all about Big Tech and large social media companies.

No. Whilst the biggest “Category 1” services would be subject to additional obligations, the Bill’s core duties would apply to an estimated 25,000 UK service providers from the largest to the smallest, and whether or not they are run as businesses. That would include, for instance, discussion forums run by not-for-profits and charities. Distributed social media instances operated by volunteers also appear to be in scope.

The Bill is all about algorithms that push and amplify user content.

No. The Bill makes occasional mention of algorithms, but the core duties would apply regardless of whether a platform makes use of algorithmic curation. A plain vanilla discussion forum is within scope.

The Secretary of State can instruct Ofcom to modify its Codes of Practice.

True. Section 40 of the Bill empowers the Secretary of State to direct OFCOM to modify a draft code of practice if the Secretary of State believes that modifications are required (a) for reasons of public policy, or (b) in the case of a terrorism or CSEA code of practice, for reasons of national security or public safety. The Secretary of State can keep sending the modified draft back for further modification.

A platform will be required to remove content that is legal but harmful to adults.

No. The legal but harmful to adults duty (should it survive in the Bill) applies only to Category 1 platforms and on its face only requires transparency. Some have argued that its effect will nevertheless be heavily to incentivise Category 1 platforms to remove such content. [Update: the government announced on 28 November 2022 that the legal but harmful to adults duty will be dropped.]

The Bill is about systems and processes, not content moderation.

False dichotomy. Whilst the Bill's illegality and harm to children duties are couched in terms of systems and processes, it also lists measures that a service provider is required to take or use to fulfil those duties, if it is proportionate to do so. Content moderation, including taking down content, is in the list. It is no coincidence that the government’s Impact Assessment estimates additional moderation costs over a 10 year period at nearly £2 billion.

Ofcom could ban social media quoting features.

Indeterminate. Some may take the view that enabling social media quoting encourages toxic behaviour (the reason why the founder of Mastodon did not include a quote feature). A proponent of requiring more friction might argue that it is the kind of non-content oriented feature that should fall within the ‘safety by design’ aspects of a duty of care - an approach that some regard as preferable to moderating specific content.

Ofcom deprecation of a design feature would have to be tied to some aspect of a safety duty under the Bill and perhaps to risk of physical or psychological harm. There would likely have to be evidence (not just an opinion) that the design feature in question contributes to a relevant kind of risk within the scope of the Bill. From a proportionality perspective, it has to be remembered that friction-increasing proposals typically strike at all kinds of content: illegal, harmful, legal and beneficial.  

Of course the Bill does not tell us which design features should or should not be permitted. That is in the territory of the significant discretion (and consequent power) that the Bill places in the hands of Ofcom. If it were considered to be within scope of the Bill and proportionate to deprecate a particular design feature, in principle Ofcom could make a recommendation in a Code of Practice. That would leave it to the platform either to comply or to explain how it satisfied the relevant duty in some other way. Ultimately Ofcom could seek to invoke its enforcement powers.

The Bill will outlaw end to end encryption.

Not as such, but... . Ofcom will be given the power to issue a notice requiring a private messaging service to use accredited technology to scan for CSEA material. A recent government amendment to the Bill provides that a provider given such a notice has to make such changes to the design or operation of the service as are necessary for the technology to be used effectively. That opens the way to requiring E2E encryption to be modified if it is incompatible with the accredited technology - which might, for instance, involve client-side scanning.  Ofcom can also require providers to use best endeavours develop or source their own scanning technology.

The government’s response to the Pre-legislative Scrutiny Committee is also illuminating: “End-to-end encryption should not be rolled out without appropriate safety mitigations, for example, the ability to continue to detect known CSEA imagery.” 

The press are exempt.

True up to a point, but it’s complicated.

First, user comments under newspaper and broadcast stories are intended to be exempt as ‘limited functionality’ under Schedule 1 (but the permitted functionality is extremely limited, for instance apparently excluding comments on comments).

Second, platforms' safety duties do not apply to recognised news publisher content appearing on their services. However, many news and other publishers will fall outside the exemption. 

Third, various press and broadcast organisations are exempted from the new harmful and false communications offences created by the Bill. [Update: the government announced on 28 November 2022 that the proposed new harmful communications offence will be dropped.]

[Updated 3 December 2022 to take account of the government announcement on 28 November 2022.]

On the Dotted Line

The topic of electronic signatures seems cursed to eternal life. In the blue corner we have the established liberal English law approach to signatures, which eschews formality and emphasises intention to authenticate. In the red corner we have preoccupation with verifying identity of the signatory, with technically engineered digital signatures and with the EU’s eIDAS hierarchy of qualified, advanced and ordinary electronic signatures.

In the English courts the blues have it. Judges have upheld the validity of electronic signatures as informal as signing a name at the end of an e-mail or even, in one case, clicking an ‘I accept’ button on an electronic form. They have been able to do this partly because, with very few exceptions, the England and Wales legislature has refrained from stipulating use of an eIDAS-compliant qualified or advanced signature as a condition of validity. The EIDAS hierarchy does form part of our law, but – rather like the Interpretation Act - in the guise of a toolkit that is available to be used or not as the legislature wishes. The toolkit has for the most part remained on the legislative shelf.

The potential consequences of stipulating eIDAS-style formalities in legislation are graphically illustrated by the Austrian case of the Wrong Kind of Signature. A €3bn contract to supply double-decker trains to Austrian Federal Railways was invalidated because the contract was signed with a qualified electronic signature supported by a Swiss, rather than an EU, Trusted Service Provider.

The modern English law aversion to imposition of formalities was pithily encapsulated in an official committee report of 1937, describing the Statute of Frauds:

““'The Act', in the words of Lord Campbell . . . 'promotes more frauds than it prevents'. True it shuts out perjury; but it also and more frequently shuts out the truth. It strikes impartially at the perjurer and at the honest man who has omitted a precaution, sealing the lips of both. Mr Justice FitzJames Stephen ... went so far as to assert that 'in the vast majority of cases its operation is simply to enable a man to break a promise with impunity, because he did not write it down with sufficient formality.’ ”

For its part eIDAS continues to complicate and confound. February’s Interim Report of the Industry Working Group on the Electronic Execution of Documents, running to 94 pages of discussion, stated that ‘only’ qualified electronic signatures have equivalent legal status to handwritten signatures (meaning, according to the Report, that they carry a presumption of authenticity). Yet while eIDAS does require equivalent legal effect (whatever that may mean) to be accorded to qualified signatures, it does not require other kinds of electronic signature to be denied that status; nor has English domestic law done so.

Back in the courts, a recent decision of Senior Costs Judge Gordon-Saker in Elias v Wallace LLP [2022] EWHC 2574 (SCCO) continues down the road of upholding the validity of informal electronic signatures. Under the Solicitors Act 1974 (as amended) a solicitor’s bill cannot be enforced by legal proceedings unless it complies with certain formalities, including that it has to be:

“(a) signed by the solicitor or on his behalf by an employee of the solicitor authorised by him to sign, or

(b) enclosed in, or accompanied by, a letter which is signed as mentioned in paragraph (a) and refers to the bill.”

The Act states that the signature may be an electronic signature. It takes its definition of electronic signature from s.7(2) of the Electronic Communications Act 2000[1], as amended:  

“… so much of anything in electronic form as –

(a)   is incorporated into or otherwise logically associated with any electronic communication or electronic data; and

(b)   purports to be used by the individual creating it to sign.”

This is an unusual example of English legislation stipulating compliance with a defined kind of signature (albeit that S.7(2) is framed in very broad terms) as a condition of validity. Most legislation requiring a signature goes no further than a generally stated requirement that the document must be signed[2].

The bills in question were sent to the solicitor’s client as e-mail attachments. The bills themselves were not signed, but the covering e-mails concluded with the words:

“Best regards,

Alex

[first name and surname]

Partner

[telephone numbers, firm name and physical and website addresses]”.

The judge held:

1. The printed name of the firm incorporated in the invoice, like a letterheading, was not a signature. This unsurprising conclusion is reminiscent of Mehta v J Pereira Fernandes SA [2006] EWHC 813 in which the same was held for an e-mail address appearing at the top of an e-mail.
2. If the name ‘Alex’ was not generated automatically, clearly it purported to be used as a signature.
3. If the name ‘Alex’ was auto-generated, then on the authority of Neocleous v Rees that would constitute a signature. The e-mail footer was clearly applied with authenticating intent, even if it was the product of a rule.

The judge also held that ‘letter’ should be interpreted to include e-mail. That is a salutary reminder that the ability to conduct a transaction electronically may not be only a question of whether electronic signatures are permissible. Other requirements of form and process can also come into play.

[1] Note that the role of S.7 was to make explicit (almost certainly unnecessarily) that electronic signatures as defined by the section were admissible as evidence, whereas the Solicitors Act provision concerns substantive validity.

[2] As to which, see the England and Wales Law Commission’s Statement of the Law in its Report on Electronic Execution of Documents (2019).

Reimagining the Online Safety Bill

“The brutal truth is that nothing is likely to trip up the Online Safety Bill.” So began a blogpost on which I was working just over a month ago. Fortunately, it was still unfinished when Boris Johnson imploded for the final time, the Conservative leadership election was triggered, and candidates – led by Kemi Badenoch - started to voice doubts about the freedom of speech implications of the Bill. Then the Bill’s Commons Report stage was put on hold until the autumn, to allow the new Prime Minister to consider how to proceed.

The resulting temporary vacuum has sucked in commentary from all sides, whether redoubled criticisms of the Bill, renewed pursuit of existing agendas, or alarm at the prospect of further delays to the legislation.

Delay, it should be acknowledged, was always hardwired into the Bill. The Bill’s regulatory regime, even at a weighty 218 pages, is a bare skeleton. It will have to be fleshed out by a sequence of secondary legislation1, Ofcom codes of practice2, Ofcom guidance3, and designated categories of service providers - each with its own step by step procedures. That kind of long drawn-out process was inevitable once the decision was taken to set up a broadcast-style regime under the auspices of a discretionary regulator such as Ofcom. 

In July 2022 Ofcom published an implementation road-map that would result in the earliest aspect of the regulatory regime (illegality safety duties) going live in mid-2024. We have to wonder whether that would have proved to be optimistic even without the current leadership hiccup and – presumably - a period of reflection before the Bill can proceed further.

The Bill has the feel of a social architect’s dream house: an elaborately designed, exquisitely detailed (eventually), expensively constructed but ultimately uninhabitable showpiece; a showpiece, moreover, erected on an empty foundation: the notion that a legal duty of care can sensibly be extended beyond risk of physical injury to subjectively perceived speech harms. 

As such, it would not be surprising if, as the Bill proceeded, implementation were to recede ever more tantalisingly out of reach. As the absence of foundations becomes increasingly exposed, the Bill may be in danger not just of delay but of collapsing into the hollow pit beneath, leaving behind a smoking heap of internal contradictions and unsustainable offline analogies.

If, under a new Prime Minister, the government were to reimagine the Online Safety Bill, how might they do it? Especially, how might they achieve a quick win: a regime that could be put into effect immediately, rather than the best part of two years later - if ever? 

The most vulnerable part of the Bill is probably the ‘legal but harmful to adults’ provisions4. However, controversial as they undoubtedly are, those are far from the most problematic features of the Bill.

Here are some other aspects that might be under the spotlight.

The new communications offences

The least controversial part of the Bill ought to be the new Part 10 criminal offences. Those could, presumably, come into force shortly after Royal Assent. However, some of them badly need fixing.

The new communications offences5 have been designed to replace the Malicious Communications Act 1988 and the notorious S.127 Communications Act 2003. They have the authority of the Law Commission behind them.

Unfortunately, the new offences are a mess. The harmful communications offence6, in particular, will plausibly create a veto for those most readily distressed by encountering views that they regard as deeply repugnant, even if that reaction is unreasonable. That prospect, and the consequent risk of legal online speech being chilled or removed, is exacerbated when the offence is combined with the illegality duty that the Bill, in its present form, would impose on all U2U platforms and search engines.

Part 10 of the Bill also has the air of unfinished business, with calls for further new offences such as deliberately sending flashing images to epileptics.

Make it about safety?

The 2017 Green Paper that started all this was entitled Internet Safety Strategy. Come the April 2019 White Paper, that had metamorphosed into Online Harms. Some have criticised the Bill’s reversion to Online Safety, although in truth the change is more label than substance. It does, however, prompt the question whether a desire for some quick wins would be served by focusing the Bill, in substance as well as in name, on safety in its core sense.

That is where much of the original impetus for the Bill stemmed from. Suicide, grooming, child abuse, physically dangerous ‘challenges’, violence – these are the stuff of safety-related duties of care. It is well within existing duty of care parameters to consider whether a platform has done something that creates or exacerbates a risk of physical injury as between users; then, whether a duty of care should be imposed; and if so, a duty to take what kind of steps (preventative or reactive) and in what circumstances. Some kinds of preventative duty, however, involve the imposition of general monitoring obligations, which are controversial.  

A Bill focused on safety in its core sense – risk of physical injury - might usefully clarify and codify, in the body of the Bill, the contents of such a duty of care and the circumstances in which it would arise. A distinction might, for example, be drawn between positively promoting an item of user content, compared with simply providing a forum akin to a traditional message board or threading a conversation. 

Duties of care are feasible for risk of physical injury, because physical injury is objectively identifiable. Physical injuries may differ in degree, but a bruise and a broken wrist are the same kind of thing. We also have an understanding of what gives rise to risk of physical injury, be it an unguarded lathe or a loose floorboard. 

The same is not true for amorphous conceptions of harm that depend on the subjective perception of the person who encounters the speech in question. Speech is not a tripping hazard.  Broader harm-based duties of care do not work in the same way, if at all, for controversial opinions, hate, blasphemy, bad language, insults, and all the myriad kinds of speech that to a greater or lesser extent excite condemnation, inflame emotions, or provoke anger, distress and assertions of risk of suffering psychological harm. 

A subjective harm-based duty of care requires the platform to assess and weigh those considerations against the freedom of speech not only of the poster, but of all other users who may react differently to the same speech, then decide which should prevail. That is a fundamentally different exercise from the assessment of risk of physical injury that underpins a safety-related duty of care. An approach that assumes that risk of subjectively perceived speech harms can be approached in the same way as risk of objectively identifiable physical injury will inevitably end up floundering in the kind of morass in which the Bill now finds itself.

The difference from risk of physical injury was, perhaps unwittingly, illustrated in the context of the illegality duty by the then Digital Minister Chris Philp in the Bill’s Commons Committee stage. He was discussing the task that platforms would perform in deciding whether user content was illegal under the new ‘harmful communications’ offence (above). The platform would, he said, perform a balancing exercise in assessing whether the content was a contribution to a matter of public interest. No balancing exercise is necessary to determine whether a broken wrist is or is not a physical injury.

Again within the illegality duty, the new foreign interference offence under Clause 13 of the National Security Bill would be designated as a priority offence under the Online Safety Bill. That would require platforms to adjudge, among other things, risk of “spiritual injury”. 

The principled way to address speech considered to be beyond the pale is for Parliament to make clear, certain, objective rules about it – whether that be a criminal offence, civil liability on the user, or a self-standing rule that a platform is required to apply. Drawing a clear line, however, requires Parliament to give careful consideration not only to what should be caught by the rule, but to what kind of speech should not be caught, even if it may not be fit for a vicar’s tea party. Otherwise it draws no line, is not a rule and fails the rule of law test: that legislation should be drawn so as to enable anyone to foresee, with reasonable certainty, the consequences of their proposed action. 

Rethink the illegality duty?7

Requiring platforms to remove illegal user content sounds simple, but isn’t. During the now paused Commons Report Stage debate on the Bill, Sir Jeremy Wright QC (who ironically, was the Secretary of State for Culture at the time when the White Paper was launched in April 2019), observed:

“When people first look at this Bill, they will assume that everyone knows what illegal content is and therefore it should be easy to identify and take it down, or take the appropriate action to avoid its promotion. …

… criminal offences very often are not committed just by the fact of a piece of content; they may also require an intent, or a particular mental state, and they may require that the individual accused of that offence does not have a proper defence to it.

The question of course is how on earth a platform is supposed to know either of those two things in each case.”   

He might also have added that the relevant factual material for any given offence will often include information that is outside anything of which the platform can have knowledge, especially for real-time automated filtering systems8.

In any event, it is pertinent to ask how many offences exist for which illegality can be determined with confidence simply by looking at the content itself and nothing else? Illegality often requires assessment of intention (sometimes, but not always, intention can be inferred from the content), purpose, or of extrinsic factual information.  The Bill now contains an illuminating, but ultimately unsatisfactory, attempt (New Clause 14) to address these issues.

The underlying problem with applying the duty of care concept to illegality is that illegality is a complex legal construct, not an objectively ascertainable fact like physical injury. Adjudging its existence (or risk of such) requires both factual information (often contextual) and interpretation of the law. There is a high risk that legal content will be removed, especially for real time filtering at scale. For this reason, it is strongly arguable that human rights compliance requires a high threshold to be set for content to be assessed as illegal.

Given the increasingly (if belatedly) apparent problems with the illegality duty, what options might a government coming to it with a fresh eye consider? The current solution, as with so many problematic aspects of the Bill, is to hand it off to Ofcom. New Clause 15 would require Ofcom to produce guidance on how platforms should go about adjudging illegality in accordance with NC 14.

Assuming that the illegality duty were not dropped altogether, other possibilities might include:

• Restrict any duty to offences where the existence of an offence (including any potentially available defences) is realistically capable of being adjudged on the face of the content itself with no further information⁹.
• For in-scope offences, raise the illegality determination threshold from reasonable grounds to infer to manifest illegality¹⁰.

Steps of this kind might in any event be necessary to achieve ECHR compliance. They would also reflect broader traditions of protection of freedom of speech, such as the presumption against prior restraint.

Illegality across the UK11

Another consequence of illegality being a legal construct is that criminal offences vary across the UK. The Bill requires a platform, when preventing or removing user content under its illegality duty, to treat a criminal offence in one part of the UK as if it applied to the whole of the UK. This has the bizarre consequence that platforms will, for instance, have to apply in parallel both the new harmful communications offence contained in the Bill and its repealed predecessor, S.127 of the Communications Act 2003. 

Why is that? Because S.127 will be repealed only for England and Wales and will remain in force in Scotland and Northern Ireland. Platforms would have to treat S.127 as if it still applied in England and Wales; and, conversely, the new England and Wales harmful communications offence as if it applied in Scotland and Northern Ireland. 

In Committee on 14 June 2022 the then Minister confirmed that: 

“…the effect of the clauses is a levelling up—if I may put it that way. Any of the offences listed effectively get applied to the UK internet, so if there is a stronger offence in any one part of the United Kingdom, that will become applicable more generally via the Bill.”

Of course the alternative of requiring platforms to undertake the (in reality impossible) task of deciding which UK law – England and Wales, Northern Ireland or Scotland - applied to which post or tweet, would hardly be less problematic.

At Report stage the government added an amendment to the Bill12 which would, for the future, mean that the non-priority illegality duty would apply only to offences enacted by the UK Parliament, or by devolved administrations with the consent of the Westminster government. If nothing else, that shines a brighter spotlight on the problem.   

The role of Ofcom

The most radical option, were the government looking for a legislative quick win that cuts out delay, would be to jettison Ofcom and its companion two year procession of secondary legislation, guidance and codes of practice. 

In truth, as a matter of principle it was always a bad idea to apply discretionary broadcast-style regulation to individual speech. The way to govern individual speech is with clear, certain laws of general application. A government so minded might consider aligning practicality with principle.

If Ofcom’s role were to be scrapped, what could replace it? One alternative might be to take existing common law duties of care relating to risk of physical injury as the starting point, clarify and codify them on the face of the Bill (not by secondary legislation), and provide for enforcement otherwise than through a regulator. 

That would require the scope and content of any duties under the Bill to be articulated, Goldilocks-style, to a reasonable level of clarity: not so abstract as to be vague, not so technology and business model-specific as to be unworkable, but just right. Granted, that is easier said than done; but still perhaps more achievable than attempting to launch the overladen supertanker that is now marooned in its passage through Parliament. 

This approach would, however, raise questions about how some kinds of duty could be made compatible with the hosting protections originating in the EU ECommerce Directive, to which the government remains committed (unlike the prohibition on general monitoring obligations, from which the government has distanced itself). 

There would then be the question of Ofcom’s proposed powers to issue notices requiring providers to use approved scanning and filtering technology13. Those powers are at best controversial, raising a plethora of issues of their own.  If such powers were to be continued in some form, they could be a candidate for separate legislation, so that issues such as impact on privacy and end-to-end encryption could be brought out into the open and given the full debate that they deserve. 

Other parts of the Bill

There is much more to the Bill than the parts discussed so far: fraudulent advertising14 and age-verification of pornographic websites15 have Parts of the Bill to themselves. There are numerous children-related provisions16, which to an extent overlap with the ICO Code of Practice on age-appropriate design and the currently mothballed Digital Economy Act 2017. Other aspects of the Bill include press exemptions promised at the time of the White Paper17(which always looked likely to be undeliverable and are still the subject of heavy debate); and the provisions constraining how Category 1 platforms can treat journalism and content of democratic importance18. 

These are all crafted on the basis of a regulatory regime operated by Ofcom. It would not be a simple matter to disentangle them from Ofcom, should the government contemplate a non-Ofcom fast track.

Online ASBIs

A refocused Bill could face the objection that it does not address some of the most unpleasant, yet currently legal, user behaviour that can be found online. That does not rule out the possibility of legislation that on its face (not consigned to secondary legislation) draws clear lines that may differ from those that apply today.  But if Parliament is unwilling or unable to draw clear lines to govern behaviour regarded as beyond the pale, what other possibilities exist?

One answer, albeit itself somewhat controversial, is already sitting on the legislative shelf, but (as far as can be seen) appears in the online context to be gathering dust.

The Anti-Social Behaviour, Crime and Policing Act 2014 contains a procedure for some authorities to obtain a civil anti-social behaviour injunction (ASBI, the successor to ASBOs) against someone who has engaged or threatens to engage in anti-social behaviour, meaning “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”. That succinctly describes online disturbers of the peace, albeit in very broad terms. It maps readily on to the most egregious abuse, cyberbullying, harassment and the like.

The Home Office Statutory Guidance on the use of the 2014 Act powers (revised in December 2017, August 2019 and June 2022) makes no mention of their use in relation to online behaviour. Yet nothing in the legislation restricts an ASBI to offline activities. Indeed, over 10 years ago The Daily Telegraph reported an 'internet ASBO' made under predecessor legislation against a 17 year old who had been posting material on the social media platform Bebo. The order banned him from publishing material that was threatening or abusive and promoted criminal activity.

ASBIs raise difficult questions of how they should be framed and of proportionality. Some may have concerns about the broad terms in which anti-social behaviour is defined in the legislation. Nevertheless, the courts to which applications are made should, at least in principle, have the societal and institutional legitimacy, as well as the experience and capability, to weigh such factors.

That said, the July 2020 Civil Justice Council Report “Anti-Social Behaviour and the Civil Courts” paints a somewhat dispiriting picture of the use of ASBIs offline. It highlights a practice of applying for orders ex parte – something that would be especially troubling for an ASBI that would affect the defendant’s freedom of expression. Concerns of that kind would have to be carefully addressed if online ASBIs were to be picked up and dusted off.

On the positive side, the usefulness of online ASBIs could be transformed if the government were to explore the possibility of extending beyond the official authorities the ability to apply to court for an online ASBI , for instance to selected voluntary organisations.

Finally, for a longer-term view of access to justice online, Section 9 of my submission to the Online Harms White Paper consultation has some blue-sky thoughts.

Footnotes (references are to the Bill sections as at the Commons Report stage, and to amendments and new clauses (NC) adopted during Report Stage on 22 July 2022 but not yet published as an amended Bill.)

^{1 Required secondary legislation S.53: priority content harmful to children, primary priority content harmful to children; S.54: priority content harmful to adults; NB S.55: regulation-making; S.56: Ofcom review; S.60: reports to National Crime Authority; S.81/Sch 11: service provider categorisation; S.98: overseas regulators; SS.141 and 142: super-complaints.}  

^{2 Required Ofcom codes of practice  S.37/Sch 4: Terrorism content, CSEA content, other duties (illegal content, children’s online safety, adults’ online safety, user empowerment, content of democratic importance, journalistic content, content reporting, complaints procedures); fraudulent advertising (Cat 1 and 2A providers).  Code of practice measures must be compatible with pursuit of specified online safety objectives (Sch 4 para 3, or as amended by regulations). Draft codes of practice are subject to modification under Secretary of State’s power of direction (S.40(1)).}

^{3 Required Ofcom guidance  S.48 (as amended at Report stage): service provider record-keeping, review and children’s risk assessments, service provider protection of news publisher content; S.58 (Cat 1 services): offer to users of identity verification; S.65 (Cat 1, 2A and 2B services): transparency reports; S.69 (regulated pornographic content providers): compliance with duties; S.85: illegal content risk assessments, children’s risk assessments, Cat 1 service adults’ risk assessments; S.130: enforcement action; S.143: super-complaints; NC15: service provider illegality judgements. Also note S.84: Required Ofcom risk assessment, risks register and risk profiles for illegal content, content harmful to children, content harmful to adults.}

^{4 Legal but harmful to adults (Cat 1 services) S.12: adults risk assessment; S.13: transparency and other duties; S.14: user empowerment; S.17(5): user content reporting; S.18(6): complaints procedures; S.54: meanings of content harmful to adults and priority content harmful to adults; S.55: regulations designating priority content harmful to adults; S.56: Ofcom review; S.64/Sch 8 (Cat 1, 2A and 2B services): transparency reports; S.81/Sch 11 (service provider categorisation); S.84: Ofcom risk assessment, risks register and risk profiles; S.187: definition of ‘harm’ as physical or psychological harm.}

^{5 New communications offences S.151 (harmful communications); S.152 (false communications); S.153 (threatening communications); S.154 (interpretation); S.155 (extraterritorial reach); S.156 Liability of corporate officers. S.151 and 152 make use of problematic ‘likely audience’ tests. S.153 ought to be uncontroversial but has adopted wider language than the Law Commission’s recommendation, resulting in possible overreach (discussed here).}

^{6 Harmful communications offence S.151.}

^{7 Illegality duty S.9 (U2U services), S.24 (search services).}

^{8 Real-time automated filtering systems S.9(3)(a) and (b); cf also S.9(2); S.24(3)(a); cf also S.24(2); S.104: accredited technology (terrorism content, CSEA content); S.117: proactive technology requirement (illegal content, children’s online safety, fraudulent advertising).}

^{9 Capability of adjudging illegality on the face of content alone This would involve review of at least the priority offences designated in Sch 7.}

^{10 Manifest illegality This would involve reconsideration of NC 14. There is uncertainty in the Bill about whether, and if so how far, a provider would be expected to go looking for information in order to determine whether there were reasonable grounds to infer an offence (para 10 of the Government Fact Sheet suggests that this would be left to Ofcom guidance). This seems most likely to be relevant to the reactive duties specified in S.9(3)(c) and S.24(3)(b) rather than to real time automated monitoring and filtering (S.9(3)(a) and (b); cf also S.9(2); S.24(3)(a)).}

^{11 Illegality applied across the UK  S.52(9) and (12).}

^{12 Future devolved offences Amendment 94.}

^{13 Scanning and filtering technology powers  S.104: use of accredited technology (terrorism content, CSEA content); S.117: inclusion of proactive technology requirements in Ofcom confirmation decisions (illegal content, children’s online safety, fraudulent advertising).}

^{14 Fraudulent advertising (Cat 1 and Cat 2A services) SS. 34 and 35.}

^{15 Pornographic site age verification SS.66 to 68.}

^{16 Children-related provisions For service providers the main duties for content harmful to children are set out in S.31: children’s access assessments; SS.10 and 25: children’s risk assessments; SS.11 and 26: children’s safety duties; S.53: primary priority, priority and non-designated content harmful to children; S.187: definition of ‘harm’ as physical or psychological harm.}  

^{17 News publisher content exemptions  S.49(2)(g) and S.51(2)(b): exclusion from scope of safety duties; NC19 (Cat 1 services): duties to protect news publisher content. S.49 (2)(e) comments and reviews on provider content. Recognised news publishers are also among those exempted from two of the three new communications offences: S.151(6)(a) (harmful communications); S.152(4)(a) (false communications).}

^{18 Journalism and content of democratic importance (Cat 1 services) S.16: journalistic content; S.15: content of democratic importance.}

[Typo (2009) corrected to 2019, 19 Aug 2022. Footnotes added 9 Oct 2022.]