Monday 22 July 2024

The Online Safety Act illegality duties: a regime about harm?

This is Part 2 of a short series of reflections on Ofcom's Illegal Harms Consultation under the Online Safety Act 2023 (OSA). Ofcom are currently in the process of considering submissions following closure of the consultation in February 2o24.

The very title of the Ofcom consultation — Illegal Harms — prompts questions about the illegality duties. Are they about illegal content? Are they about harm? Is all illegal content necessarily harmful? What does the Act mean by harm?

What is meant by harm?

The answer to the last question ought to be simple. For the purpose of the safety duties harm means “physical or psychological harm". For the remaining questions, the devil resides in the tangled undergrowth of the Act (discussed in Part 3, analysing and categorising the Act's Illegal Content duties). 

However, the Act’s specific meaning of harm is often glossed over.  Ofcom’s Quick Guide to illegal content risk assessments mentions ‘harm’ or ‘illegal harm’ 16 times without pointing out that for the purpose of the safety duties harm has a defined meaning. Considering how many of the illegal content risk assessment duties are framed by reference to harm (see table in Part 3), it is striking that neither the consultation section explaining Ofcom’s approach to the risk assessment duty (Volume 3), nor the draft Illegality Risk Assessment Guidance itself (Annex 5), mentions the Act’s specific meaning of harm.

The four page consultation Overview is similarly lacking, while mentioning ‘harm’ or ‘illegal harm’ 16 times. Neither is the definition mentioned in Ofcom’s 39 page summary of each chapter of the consultation, nor in the consultation’s 38 page Volume 1 Background to the Online Safety regime.

At the start of Volume 2 of the consultation (the Ofcom Register of Risks for illegal content) we do find:

“The Online Safety Act (the Act) requires Ofcom to carry out sector-wide risk assessments to identify and assess the risk of physical and psychological harm to individuals in the UK presented by regulated user-to-user (U2U) and search services, and to identify characteristics relevant to such risks of harm.” [para 5.1]

The footnote to that paragraph says:

“‘Risks of harm’ refers to the harm to individuals presented by (a) content on U2U or search services that may amount to the offences listed in the Act, and (b) the use of U2U services for the commission and/or facilitation of these offences (collectively, the ‘risks of harm’). ‘Harm’ means physical or psychological harm; we discuss physical or psychological harm as part of our assessment of the risks of harm.”

The Register of Risks section then continues to emphasise the Act’s specific meaning of harm.  Of the four separate glossaries and lists of definitions contained in the consultation papers, only the Register of Risks Glossary includes the Act’s definition of harm. 

A footnote to a paragraph in the Register of Risks section which references an Ofcom survey acknowledges the risk of overreach in unbounded references to harm:

“63% of internet users 13 years old and over had seen or experienced something potentially harmful in the past four weeks.[Note: these may capture a broad range of potentially harmful experiences that go beyond illegal harms] Source: Ofcom, 2022. Online Experiences Tracker. [accessed 10 September 2023].” [footnote 22, para 6.1]

To give an example, the survey in question prompted respondents that potential harm included “Generally offensive or ‘bad’ language, e.g. swearing, rudeness”. 

The OSA's illegality duties have not generally embraced the broader and vaguer concepts of societal harm that were discussed at the time of the Online Harms White Paper. Nevertheless, the Ofcom consultation is not immune from straying into the territory of societal harm:

“In most cases the harms we have looked at primarily affect the individual experiencing them. However, in some cases they have a wider impact on society as a whole. For instance, state-sponsored disinformation campaigns can erode trust in the democratic process. All this underlines the need for the new legislation and shows that, while many services have made significant investments in tackling online harm in recent years, these have not yet been sufficient.” [Boxout, Volume 2, p.8]

A state-sponsored disinformation campaign could be relevant to this consultation only if it constitutes an offence within the purview of the Act (e.g. the new Foreign Interference offence). Even then, only a risk of physical or psychological harm to an individual could be relevant to determining what kinds of illegality safety duty might be triggered: content-based, non-content-based or harm-based (as to which, see the discussion in Part 3 of the different categories of duty created by the Act)For the purpose of the Act's illegality safety duties the “wider impact on society as a whole” is not a relevant kind of harm. 

Returning to the consultation title, the term ‘Illegal Harm’ does not appear in the Act. The consultation Glossary essays a definition: 

"Harms arising from illegal content and the commission and facilitation of priority offences".

Volume 1, which describes the illegal content duties, contains a slightly fuller version:

“‘illegal harm’ – this refers to all harm arising from the relevant offences set out in the Act, including harm arising from the presence of illegal content online and (where relevant) the use of online services to commit or facilitate priority offences. …” [Volume 1, para 1.23]

‘Harm’, as already mentioned, is defined in the Act as physical or psychological harm. 

If that definition of Illegal Harm is meant to describe the overall subject-matter of the illegality duties it is incomplete, since in its terms it can apply only to those illegality duties that are framed by reference to harm.

In any event the consultation does not use the phrase ‘Illegal Harms’ consistently with that definition.  It sometimes reads as a catch-all for the illegality duties generally. Often it refers to the underlying offences themselves rather than the harm arising from them. Thus on the second page of the Consultation at a Glance: “The 15 different kinds of illegal harms set out in Ofcom’s draft risk assessment guidance are: Terrorism offences…”.

In places it is difficult to be sure in what sense the term ‘illegal harm’ is being used, or it changes from one paragraph to the next. An example is in the Risk Assessment Guidance:

“A5.23 You must assess the risk of each kind of illegal harm occurring on your service. U2U services need to consider the risk of:

Illegal content appearing on the service – for example, content inviting support for a proscribed organisation (e.g. a terrorist group);

An offence being committed using the service – for example, a messaging service being used to commit grooming offences, in a situation where adults can use the service to identify and contact children they do not know; and

An offence being facilitated by use of the service – for example, the use of an ability to comment on content to enable harassment.

A5.24 You must assess the likelihood of these illegal harms taking place, and the potential impact (i.e. the nature and severity of harm to individuals).

A5.25 As long as you are covering all of the risks of harm to individuals, you can assess these three aspects together when you assess each kind of illegal harm.”

In para A5.23 ‘illegal harm’ is being used to describe three different varieties of risk assessment duty: Sections 9(5)(b),(c) and (e). None of those is framed in the Act by reference to harm. Nor does the Glossary definition of illegal harm fit the usage in this paragraph. 

Paras A5.24 and A5.25 then refer to harm to individuals. That reflects a duty which is framed by reference to harm (Section 9(5)(g)). It is a duty to which the defined meaning of physical or psychological harm applies.

Relatedly, shortly afterwards the Guidance says:

“In the risk assessment, the key objective is for you to consider in a broad way how your service may be used in a way that leads to harm.” (Box-out following A5.41)

It does not mention the Act’s definition of harm (assuming, as presumably it must do, that that is what the Guidance means by harm in this context).

Shorthand is probably unavoidable in the challenging task of rendering the consultation and the OSA understandable. But when it comes to describing a key aspect of the safety duties, shorthand can result in confusion rather than clarity. The term 'illegal harm' is especially difficult, and might have been best avoided. Given its specific meaning in the Act, rigorous and clear use of the term ‘harm' is called for.


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