The Ordinary Reasonable Person encounters (or not) cyber-abuse

The recent decision of the Australian Administrative Review Tribunal in X Corp and Elston v eSafety Commissioner illustrates the complexities that can arise when the law tasks a regulator or platform to adjudge an online post.

The decision grapples with a dilemma that is familiar, albeit under a very different legislative regime, from the UK’s Online Safety Act 2023. It is also features in the police takedown notice scheme for unlawful knives and other weapons content contained in the Crime and Policing Bill (currently making its way through Parliament).

At a high level, the issue is how to achieve rapid removal of impugned user content (typically because it is illegal under the general law or defined as harmful in some way), while not affecting legitimate posts. The specific challenge is that the contents of the post alone are often insufficient to determine whether the legal line has been crossed. Contextual information, which may be off-platform and involve investigation, is required. The Elston case provides a vivid illustration.

The twin imperatives of rapid removal and adequate investigation of context stand in conflict with each other. A regime that requires contravention to be adjudged solely on the contents of a post, ignoring external context, is likely to be either ineffectual or overreaching, depending on which way the adjudicator is required to jump in the absence of relevant information.

Australia’s Online Safety Act 2021 empowers the eSafety Commissioner, but only following receipt of a complaint, to issue a content removal notice to a social media platform if she is satisfied that a user’s post constitutes cyber-abuse material targeted at an Australian adult. (In this respect the Australian legislation resembles the UK Crime and Policing Bill more than our Online Safety Act: Ofcom has no power under the OSA to require removal of a specific item of user content. The Crime and Policing Bill will institute a regime of police takedown notices for unlawful knives and other weapons content, albeit not predicated on receipt of a complaint.)

Cyber-abuse material under the Australian Act has two key elements. The eSafety Commissioner has to be satisfied of both before issuing a removal notice:

Intention Element: an ordinary reasonable person would conclude that it is likely that the material was intended to have an effect of causing serious harm to a particular Australian adult.

Offense Element: an ordinary reasonable person in the position of the Australian adult would regard the material as being, in all the circumstances, menacing, harassing or offensive.

Serious harm is defined as serious physical harm or serious harm to a person’s mental health, whether temporary or permanent. Serious harm to a person’s mental health includes:

(a) serious psychological harm; and

(b) serious distress;

but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.

The need to assess what an ‘ordinary reasonable person’ would think is common to both elements. For the Intention Element the Ordinary Reasonable Person has to determine the likely intention of the person who posted the material. For the Offense Element, in order to determine how the material should be regarded, the Ordinary Reasonable Person has to be put in the position of the Australian adult putatively intended to be targeted.

The reason why the legislation hypothesises an Ordinary Reasonable Person is to inject some objectivity into what could otherwise be an overly subjective test.

The Tribunal observed that the Intention Element converted what would otherwise be “a broadly available censorship tool based on emotional responses to posted material” into a provision that “protects people from a much narrower form of conduct where causing serious harm to a particular person was, in the relevant sense, intended” [21]. (This has similarities to the heavy lifting done by the mental element in broadly drafted terrorism offences.)

We are in familiar legal territory with fictive characters such as the Ordinary Reasonable Person. It is reminiscent of the fleeting appearance of the Person of Ordinary Sensibilities in the draft UK Online Safety Bill.

Nevertheless, as the Tribunal decision illustrates, the attributes of the hypothetical person may need further elucidation. Those characteristics can materially affect the balance between freedom of expression and the protective elements of the legislation in question.

Thus, what is the Ordinary Reasonable Person taken generally to know?  What information can the Ordinary Reasonable Person look at in deciding whether intention to cause serious harm is likely? How likely is likely?

The information available to the Ordinary Reasonable Person

The question of what information can, or should, be taken into account is especially pertinent to legislation that requires moderation decisions to be made that will impinge on freedom of expression. The Tribunal posed the question thus:

“… whether findings on the Intention Element should be made on an impressionistic basis after considering a limited range of material, or whether findings should be made after careful consideration, having regard to any evidence obtained as part of any investigation or review process.” [45]

It found that:

“The history and structure of the provisions suggest that while impressionistic decision-making may be authorised in the first instance, early decisions made on limited information can and should be re-visited both internally and externally as more information becomes available, including as a result of input from the affected end-user.” [45]

That was against the background that:

“…the legislation as passed allows for rapid decision making by the Commissioner to deal with material that appears, on its face, to be within a category that the Act specified could be the subject of a removal notice. However, once action has been taken, the insertion of s 220A confirms that Parliament accepted that there needed to be an opportunity for those affected by the action to have an opportunity to address whether the material was actually within the prohibited statutory category. External review by the Tribunal was provided for with the same end in mind.” [44]

The UK Online Safety Act states that a platform making an illegality judgement should do so on the basis of all relevant information reasonably available to it. Ofcom guidance fleshes out what information is to be regarded as reasonably available.

The UK Crime and Policing Bill says nothing about what information a police officer giving an unlawful weapons content removal notice, or a senior officer reviewing such a notice, should seek out and take into account. Nor does it provide any opportunity for the user whose content is condemned to make representations, or to be notified of the decision.

Generally speaking, the less information that can or should be taken into account, the greater the likelihood of arbitrary decision-making and consequent violation of freedom of expression rights.

In the Elston case three different variations on the Ordinary Reasonable Person were put to the Tribunal. The eSafety Commissioner argued that the Ordinary Reasonable Person should be limited to considering the poster’s profile on X and the material constituting the post. The poster’s subsequent evidence about his intention and motivations was irrelevant to determining whether the Intention Element was satisfied. The same was said to apply to evidence about the poster’s knowledge of the Australian person said to be targeted. (The Tribunal observed that that would mean that even material contained in the complaint that preceded the removal notice would be excluded from consideration.)

As to the general knowledge of the Ordinary Reasonable Person, the eSafety Commissioner argued that (for the purposes of the case before the Tribunal, which concerned a post linking to and commenting on a newspaper article about a transgender person) the Ordinary Reasonable Person would be aware that material on X can bully individuals, would understand that public discourse around sexuality and gender can be polarising as well as emotionally charged; and would understand that calling a transgender man a woman would be to act contrary to that transgender man’s wishes.

X Corp argued that the decisionmaker was entitled to have regard to evidence (including later evidence) concerning immediate context as at the time of the post, but not more. The facts which could be known to the ordinary reasonable person when making their assessment included facts about the subject of the post or the poster, what their relationship was at the time of the post, but not evidence about what happened after.

The significance of the different positions was that on X Corp’s case, later evidence could be taken into account to the effect that the poster did not know, or know of, the person who was the subject of the post until he read the newspaper article. That was not apparent from the post itself or the poster’s profile.

Mr Elston (the poster) argued that a wide range of material could be acquired and treated as available to the ordinary reasonable person when asked to decide whether the material posted ‘was intended to have an effect of causing serious harm’.

On this view of the statutory power, evidence obtained before or after the post, during the course of the investigation and concerning matters that occurred after the post was made, could be treated as available to the Ordinary Reasonable Person when considering the Intention Element.

On this approach, Mr Elston’s own evidence about his intention would be “relevant to consider, but not necessarily conclusive of what an ordinary reasonable person would conclude about his intention.” [62]

The Tribunal agreed with Mr Elston’s approach:

“The existence of the investigative powers available to the Commissioner and the complaint-based nature of the power provide a powerful basis for concluding that the Commissioner and the Tribunal should be feeding all of the available evidence into the assessment of what the ‘ordinary reasonable person’ would conclude was likely before determining whether the Intention Element is satisfied.” [74]

It added:

“The Parliament was concerned to give end-users an opportunity to address claims about their conduct both on internal review and by providing review in the Tribunal. To read the ordinary reasonable person lens as a basis for disregarding evidence submitted by either the complainant or the end-user or discovered by the Commissioner during an investigation is not consistent with the fair, high quality decision-making the Parliament made provision for.” [77]

The Tribunal then spelled out the consequences of the Commissioner’s approach:

“…In many circumstances, including this case, limiting the information that can be considered by the ‘ordinary reasonable person’ to the post and closely related material, results in critical information not being available.” [81]

It went on:

“In this case, there is no evidence in any of the material posted and associated with the post, that the post was ever brought to the attention of Mr Cook [the complainant]. …

That Mr Cook was aware of the post is only discoverable by reference to the complaint submitted to the Commissioner. If a decision maker is restricted to knowing that a post was made to a limited audience, none of whom included Mr Cook, reaching the conclusion that the material was intended to cause serious harm to Mr Cook is going to be difficult. In those circumstances, where there appears to be no evidence to which the decision maker can have regard in order to make a finding that the post came to Mr Cook’s attention, let alone was intended to come to his attention, a decision to issue a removal notice could not be sustained.” [81]

The Tribunal reiterated:

“In many cases, it will be the complaint that provides critical context to allow an ordinary reasonable person to conclude that serious harm was intended.” [81]

The Tribunal concluded that evidence about what happened after the post was posted could be relevant if it shed light on the likely intention of the poster. Similarly, evidence about prior behaviour of third parties in response to certain posts could be relevant, even if it was only discoverable by the regulator using compulsory powers:

“So long as evidence sheds light on the statutory question, then it can and should be considered. It would be inappropriate in advance of a particular factual scenario being presented to the decision-maker to say that there are whole categories of evidence that cannot be considered because the statutory test in all circumstances renders the material irrelevant.” [87]

Nevertheless, that did not mean that the concept of the ‘ordinary and reasonable’ person had no effect:

“It moves the assessment away from a specific factual inquiry concerning the actual thought process of the poster and what effect they intended to achieve by the post. I must undertake a more abstract inquiry about what an independent person (who isn’t me) would think was the poster’s intention having regard to the available evidence. Provided evidence is relevant to that question, then it can and should be considered.” [89]

Whilst specific to the Australian statute and its fictive Ordinary Reasonable Person, this discussion neatly illustrates the point that has repeatedly been made (and often ignored): that platform judgements as to illegality required by the UK Online Safety Act will very often require off-platform contextual information and cannot sensibly be made on the basis of a bare user post and profile.

The point assumes greater significance with real-time proactive automated content moderation – something that Ofcom is proposing to extend – which by its very nature is unlikely to have access to off-platform contextual information.

The discussion also speaks eloquently to the silence of the Crime and Policing Bill on what kind and depth of investigation a police officer should conduct in order to be satisfied as to the presence of unlawful weapons content.

Likelihood of serious harm

The other significant point that the Tribunal had to consider was what the statute meant by ‘likely’ that serious harm was intended. The rival contentions were ‘real chance’ and ‘more probable than not’. The Tribunal held that, in the statutory context, the latter was right. The conclusion is notable for acknowledging the adverse consequences for freedom of expression of adopting a lower standard:

“A finding by the ordinary reasonable person that a person was setting out to cause serious harm to another is a serious, adverse finding with implications for freedom of expression. It is not the kind of finding that should be made when it is only possible that serious harm was intended.” [119]

The standard set by the UK Online Safety Act for making content illegality judgements is “reasonable grounds to infer”. It remains questionable, to say the least, whether that standard is compatible with ECHR Article 10. The Crime and Policing Bill says no more than that the police officer must be ‘satisfied’ that the material is unlawful weapons content.  

The Tribunal’s conclusion

On the facts of the case, the Tribunal concluded that an ordinary reasonable person in the position of the complainant Mr Cook would regard the post as offensive; but that the Intention Element was not satisfied. That depended crucially on the broader contextual evidence:

“Read in isolation, the post looks to be an attempt to wound Mr Cook and upset him and cause him distress, perhaps even serious distress. If an ordinary reasonable person was only aware of the post, then it may be open to find that the poster’s intention was likely to be to cause serious harm to Mr Cook. However, when the broader context is known and understood, it is difficult to read the post as intended to harm Mr Cook, or intended to have others direct criticism towards Mr Cook or designed to facilitate vitriol by spreading personal information about him.” [191]

Amongst the broader context was lack of evidence that the poster intended the post to come to Mr Cook’s attention.

“For the post to do any harm it needed to be read by Mr Cook. While I am satisfied that Mr Elston was indifferent to whether the post did come to Mr Cook’s attention and indifferent to whether or not it distressed him, there is no evidence to support the conclusion that the post was made with the intention of it being brought to Mr Cook’s attention.” [197]

Part of the reasoning behind that conclusion was that Mr Elston’s post did not tag Mr Cook’s user handle, but only that of the World Health Organisation (which had appointed Mr Cook to an advisory panel):

“ It is notable that Mr Elston only included the handle for the WHO in his post and there is nothing in the body of the post that attempts to facilitate the contacting of Mr Cook by Mr Elston’s followers. Mr Cook’s name is not used in the body of the post.” [200]

Overall, the Tribunal concluded:

“When the evidence is considered as a whole I am not satisfied that an ordinary reasonable person would conclude that by making the post Mr Elston intended to cause Mr Cook serious harm. In the absence of any evidence that Mr Elston intended that Mr Cook would receive and read the post, and in light of the broader explanation as to why Mr Elston made the post, I am satisfied that an ordinary reasonable person would not conclude that that it is likely that the post was intended to have an effect of causing serious harm to Mr Cook.” [207]

For present purposes the actual result in the Elston case matters less than the illustration that it provides of what can be involved in making judgements about removal or blocking of posts against a statutory test: whether that evaluation be done by a regulator, a platform discharging a duty imposed by statute or (in the likely future case of unlawful weapons content) the police.

Knives out for knives

As part of a broader campaign targeting knife crime the Home Office has published its consultation response on a new procedure for authorised police officers to issue takedown notices to online platforms (also now to include search engines). These would require 48-hour removal of specified illegal weapons content items, on pain of civil penalty sanctions.

The government has also tabled implementing amendments to the Criminal Law and Policing Bill. These merit close attention. A takedown regime of this kind inevitably faces some similar issues to those that confronted the Online Safety Act, particularly in how to go about distinguishing illegal from legal content online. The Online Safety Act eventually included some fairly tortuous provisions that attempt (whether successfully or not) to meet those challenges. In contrast, the Policing Bill amendments maintain a judicious silence on some of the thorniest issues.

Parenthetically, as a policy matter the idea of a system for giving authoritative illegal content removal notices to platforms is not necessarily a bad one — so long as the decision to issue a notice is independent and accompanied by robust prior due process safeguards.  Previously, back in 2019, I suggested a system of specialist independent tribunals that could be empowered to issue such notices to platforms, as (along with other measures) a preferable alternative to a ‘regulation by discretionary regulator’ scheme. That idea went nowhere.

But back to the Bill amendments. The most critical aspects of an official content removal notice regime are how illegality is to be determined, independence of the notice-giver, prior due process and safeguards. How do the government’s proposals measure up?

What is unlawful weapons content?

As the Online Safety Act has reminded us, the notion of illegal content is not as simple a concept as might be thought; nor is making determinations of illegality.

First off, there is the conceptual problem. Online content as such cannot be illegal: persons, not content, commit offences. It is only what someone does with, or by means of, content that can be illegal.

Of course, in everyday parlance we say that zombie knives are illegal, or that extreme pornography is illegal, and we know what we mean. Statutory drafting has to be more rigorous: it has to reflect the fact that the offence is constituted by what is done with the item or the content, with what intent, and subject to any available defences. It is legally incoherent to say that content constitutes an offence, without seeking to bridge that gap.

The Online Safety Act attempted to grapple with the conceptual difficulty of equating content with an offence. The Policing Bill amendments do not.

For England and Wales new clause NC79 in the Bill amendments asserts that content is “unlawful weapons content” if it is:

“content that constitutes…  an offence under section 1(1) of the Restriction of Offensive Weapons Act 1959 (offering to sell, hire, loan or give away etc a dangerous weapon)”

NC79 provides the same for offences under section 1 or 2 of the Knives Act 1997 (marketing of knives as suitable for combat etc and related publications), and under section 141(1) of the Criminal Justice Act 1988 (offering to sell, hire, loan or give away etc an offensive weapon).

That is all. The Online Safety Act (Section 59(2)) does kick off in a similar way, by stipulating that:

“ “Illegal content” means content that amounts to a relevant offence.”

But (unlike the Policing Bill amendments) section 59(3) goes on to try to bridge the gap between content and conduct:

“Content consisting of certain words, images, speech or sounds amounts to a relevant offence if—

(a) the use of the words, images, speech or sounds amounts to a relevant offence,

(b) the possession, viewing or accessing of the content constitutes a relevant offence, or

(c) the publication or dissemination of the content constitutes a relevant offence.”

The Bill amendments contain no equivalent clause.

Determining illegality

Even if the conceptual gap were to be bridged by a similar amendment clause, that does not mean that illegality is necessarily obvious just by looking at the online content. Each offence has its own conduct elements, mental element and any defences that the legislation may stipulate. Ofcom’s Illegal Content Judgements Guidance under the Online Safety Act devotes three pages to section 1(1) of the Restriction of Offensive Weapons Act 1959 alone.

Two issues arise with determining illegality: what information does the authorised police officer need to have in order to be able to make a determination? How sure does the officer have to be that an offence has been committed?

The Online Safety Act, recognising that illegality may have to be considered in a broader context than the online content alone, stipulates that a service provider’s determination of illegality has to be made in the light of all relevant information that is reasonably available to the service provider.

That has some parallels with the duties of investigating police officers under the Criminal Procedure and Investigations Act 1996: that all reasonable steps are taken for the purposes of the investigation and, in particular, that all reasonable lines of inquiry are pursued.

The 1996 Act duty applies to a police investigation conducted with a view to ascertaining whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it. However, ascertaining whether an offence has been committed for the purpose of a content removal notice is not the same as doing so with a view to making a charging decision. In order to issue a content removal notice the officer would not need to identify who had committed the offence – only determine that someone had done so.

Assuming, therefore, that the 1996 Act duty would not apply if a police officer were considering only whether to issue a content removal notice, how far would the police have to go in gathering relevant information before deciding whether an offence had been committed?

There will of course be cases, perhaps even most cases, in which the illegality may be obvious – for instance from the kind of knife involved and what has been said online – and the possibility of a defence remote. But it will not necessarily always be simple, or even possible, to make an illegality determination simply by looking at the online content alone.

The Online Safety Act (and Ofcom’s guidance on making illegality judgements) attempts to indicate what information the service provider should consider in making judgements about illegality. The Bill amendments are silent on this.

Indeed, the Ofcom Online Safety Act guidance (which regards law enforcement as a potential ‘trusted flagger’ for this kind of offence) anticipates that the flagger may provide contextual information: “Reasonably available information for providers of user-to-user and search services” is:

• The content suspected to be illegal content.

• Supporting information provided by any complainant, including that which is provided by any person the provider considers to be a trusted flagger.

The silence of the Bill amendments on this topic is all the more eloquent when we consider that nowhere in the procedures – from content removal notice through to appeal against a civil penalty notice – is there any provision for the person whose content is to be removed to be notified or given the opportunity to make representations.

Comparison with the Online Safety Act

The government emphasises, in its Consultation Response para 6.7, that:

“The proposed measure sits alongside, and does not conflict with, the structures established through the Online Safety Act 2023.”

Strictly speaking that is right: a notice from a police officer under the Bill amendments could have three separate functions or effects:

-        Constitute a notice requiring 48-hour takedown under the new provisions.

-        Fix the service provider with awareness of illegality for the purpose of the OSA reactive duty under S.10(3)(b).

-        Fix the service provider with knowledge of illegality for the purpose of the hosting liability shield derived from the eCommerce Directive. 

Since these are three separate, parallel structures, it is correct that they do not conflict[1]. Nevertheless, they are significantly different from each other. As well as the differences from the Online Safety Act already outlined, the role of law enforcement under the Bill amendments is significantly different.

In particular, although under the Online Safety Act law enforcement may be considered to be a trusted flagger, Ofcom cautions that:

“A provider is not required to accept the opinions of a third party as to whether content is illegal content. Only a judgment of a UK court is binding on it in making this determination. In all other cases, it will need to take its own view on the evidence, information and any opinions provided.”

Therein lies the biggest difference between the Online Safety Act and the Bill amendments. Under the Bill amendments, subject to the review procedure outlined below, a service provider is required to act on the opinion of the police.

The government plans that the content removal system will be operated by a new policing unit, which will be responsible for issuing removal notices. That is presumably reflected (in part) by the Bill amendment provision that a content removal notice has to be given by an officer authorised by the Director General of the National Crime Agency or the chief officer of the relevant police force.

How sure that an offence has been committed?

A related aspect of determining illegality is how sure the person making the decision has to be that the content is illegal.  The Online Safety Act stipulates that the provider has to treat the content as illegal if it has ‘reasonable grounds to infer’ that the content is illegal. ‘Reasonable grounds to infer’ is a relatively low threshold, which has given rise to concerns that legitimate content will inevitably be removed with consequent risk of European Convention on Human Rights incompatibility.

The Bill amendments take a different approach: the police officer making the decision must be ‘satisfied’ that the content is unlawful weapons content. ‘Satisfied’ presumably is not intended to be a wholly subjective assessment. But if not, what degree of confidence is implicit in ‘satisfied’? If the police officer has residual doubts, or has insufficient information to make up his or her mind, could the officer be ‘satisfied’ that the content amounts to an offence? Equally, it probably does not mean ‘satisfied beyond all reasonable doubt’.

The Online Safety Act provides that a service provider does not have to take into account the possibility of a defence unless it has reasonable grounds to infer that a defence may be successfully relied upon. By contrast, under the Bill amendments it seems likely that the police officer would always have to be satisfied that no defence was available.

Safeguards

The government has sought to address the risk of ill-founded notices by means of a review mechanism. The content removal notice has to explain the police officer’s reasons for considering that the content is unlawful weapons content.  The service provider can request review of a notice by a more senior officer. The reviewing officer must then give a decision notice, setting out the outcome of the review and giving reasons. The government has said that it:

“…believes that the review process designed within the proposal adequately addresses online companies concerns with cases where it would be difficult to determine the illegality of content.” (Consultation Response, [6.8])

The review process, however, sheds no light on how much contextual information gathering by police officers is contemplated, nor on the degree of confidence implicit in being ‘satisfied’. It contains no element of independent third party review, nor any opportunity for the person whose content is to be removed to make representations.

That said, the procedure could perhaps be fleshed out by guidance to law enforcement that the Secretary of State may (but is not required to) issue under NC84.

Underlying all these considerations is the matter of ECHR compatibility. The lower or more subjective the threshold for issuing a notice, the less the predictability of the process or outcome, and the fewer or weaker the safeguards against arbitrary or erroneous decision-making, then the greater the likelihood of ECHR incompatibility.

It might be said against all of this that of course the police would only issue a content removal notice if was obvious from the online content itself that an offence was being committed. If that were the intention, might it be preferable to make that explicit and write a “manifest illegality” standard into the legislation?

Does it matter?

It could well be questioned why any of this matters. Who really cares if a few less knives appear online because content is wrongly taken down? That kind of argument is depressingly easy to make where impingements on freedom of expression are concerned. Thus in a different context, what does it really matter if, in our quest to root out the evils in society, we sacrifice due process and foreseeability to flexibility and remove a few too many tasteless jokes, insulting tweets, offensive posts, shocking comments, wounding parodies, disrespectful jibes about religion or anything else that thrives in the toxic online hinterland of the nearly illegal?

Opinions on that will differ. For me, it matters because the rule of law matters. Due process provides the opportunity to be heard. It matters that you should be able to predict in advance, with reasonable certainty, whether something that you are contemplating posting online is liable to be taken down as the result of official action (or, for that matter, the action of a platform seeking to comply with a legal or regulatory duty).

If you cannot do that, you are at the mercy of arbitrary exercise of state power. It is knives today, but who knows what tomorrow (we can, however, be sure that once one 48-hour takedown regime is enacted others will follow).  Abandon the rule of law to ad hoc power and, as Robert Bolt had Sir Thomas More declaim to William Roper in A Man For All Seasons:

“…do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”.

However skilled a dedicated police unit may be, expertise is no substitute for due process, safeguards and independent adjudication. Otherwise, why would we bother with courts at all? The fact that content, rather than a person, is condemned is not, I would suggest, a good reason to skimp on rule of law principles.

It may be said that the Bill amendments provide for recourse to the courts. They do, but only once matters have got as far as a civil penalty notice imposing a fine for non-compliance; and they concern only the platform, not the person who posted the content. That is not the same as due process, safeguards or independent review at the outset of the decision-making process.

Extraterritoriality

To finish with a more technical matter: extraterritoriality. The Online Safety Act, although fairly aggressive in its assertion of jurisdiction, did recognise the need to establish some connection with the UK in order for a U2U or search service to fall within its territorial scope. Thus Section 4 of the OSA sets out a series of criteria to determine whether a service is UK-linked.

The Bill amendments contain no such provision. On the face of it a police officer could serve notices under the Act by email and (in the event of non-compliance) impose civil penalties on any service provider anywhere in the world, regardless of whether they have any connection with the UK at all. If that is what is intended, it would be an extraordinary piece of jurisdictional overreach.

That would also (presumably) bring into play delicate judgements by authorised police officers, when considering whether to serve a content removal notice, as to whether an activity on a platform that had no connection with the UK amounted to an offence within the UK. That is a matter of the territorial scope of the underlying UK offence. The Online Safety Act circumvents questions of that kind by, for the purpose of service provider duties, instructing the service provider to disregard territorial considerations:

“For the purposes of determining whether content amounts to an offence, no account is to be taken of whether or not anything done in relation to the content takes place in any part of the United Kingdom.”

The Bill amendments are silent on these difficult jurisdictional issues.

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[1] This is on the basis that the notice regime would fall within the eCommerce Directive exception for specific court or administrative authority orders to terminate an infringement. That would depend on whether the police are properly regarded as an administrative authority.  If not, it could be argued that the Policing Bill amendments in substance are inconsistent with the eCommerce Directive hosting liability shield to which, as a matter of policy, the government ostensibly continues to adhere: "The government is committed to upholding the liability protections now that the transition period has ended." (The eCommerce Directive and the UK, last updated 18 January 2021).

The computer is always right - or is it?

This is my submission to the Ministry of Justice Call for Evidence on computer evidence in criminal proceedings. 

Some takeaways from 24 pages of rather dense legal analysis:

• The evidential presumption of reliability (properly so called) is a different animal from informal assumptions about the reliability of computers. They are related, and the latter may influence attitudes to e.g. the threshold for disclosure applications, or to the basic understanding of what the prosecution has to do to prove a case ‘beyond reasonable doubt’ (as opposed to theoretical or fanciful doubt). But the evidential presumption is legally distinct and has a specific, limited, function. The review should cast its net wider than the evidential presumption properly so-called, but equally not confuse it with informal assumptions.

• There is evidently a perception (possibly fostered by the Law Commission 1995 and 1997 recommendations) that the presumption of reliability applies automatically to all computing devices. I don’t think the caselaw supports that. As I read the cases, the court can decide whether or not to apply the presumption.

• If the prosecution deploys expert evidence on reliability the presumption is irrelevant: it’s a matter of deciding between experts. So for general purpose computers and software (i.e. excluding breathalysers, speed guns etc, where the presumption is routinely relied upon) how often does the prosecution actually rely on (and then the court apply) the presumption? This is a question for criminal practitioners (which I am not).  I have found no reported criminal cases (other than where accuracy was not questioned), but will readily stand to be corrected if there are any.

• Reliability of computer evidence always has to be considered in the context of what specifically is sought to be proved by it (which can vary widely). For instance, to make a general point, adducing computer records to evidence presence of a transaction is different from proving absence. The latter requires the computer records to be not just accurate, but complete.

• It should not be forgotten that a defendant may wish to adduce computer evidence (e.g. a video taken by them on their mobile phone).

• There may be a distinction to be made between the output of general purpose computing systems and dedicated forensic tools.

• It may also be pertinent to consider whether the computer evidence sought to be relied upon is central to the prosecution’s case, and whether it is corroborated or uncorroborated.

• A computer evidence regime that is predicated on whether a document is ‘produced by a computer’ is potentially problematic, for two reasons. First, there is hardly a document now that has not been touched by a computer at some point in its history. Are those all ‘produced by a computer’? Second (as presaged in the caselaw on S.69 PACE 1984), a bright line definition of that kind is liable to give rise to satellite disputes about what does and does not fall on either side of the line. It may be more fruitful to view matters through the lens of a regime for documentary evidence generally.

• The proposed distinction between generated and captured or recorded evidence is difficult to apply conceptually. The practical examples given in the Call for Evidence throw up many questions.

• Any proposed computer evidence regime should be tested against concrete hypotheticals.  I have suggested a list of fourteen, drawn from reported cases.

[Updated 16 April 2025 with a list of takeaways]

The Online Safety Act grumbles on

Policymakers sometimes comfort themselves that if no-one is completely satisfied, they have probably got it about right. 

On that basis, Ofcom’s implementation of the Online Safety Act’s illegality duties must be near-perfection: the Secretary of State (DSIT) administering a sharp nudge with his draft Statement of Strategic Priorities, while simultaneously under fire for accepting Ofcom’s advice on categorisation of services; volunteer-led community forums threatening to close down in the face of perceived compliance burdens; and many of the Act’s cheerleaders complaining that Ofcom’s implementation has so far served up less substantial fare than they envisaged. 

As of now, an estimated 25,000 UK user-to-user and search providers (plus another 75,000 around the world) are meant to be busily engaged in getting their Illegal Harms risk assessments finished by 16 March. 

Today is Safer Internet Day. So perhaps spare a thought for those who are getting to grips with core and enhanced inputs, puzzling over what amounts to a ‘significant’ number of users, learning that a few risk factors may constitute ‘many’ (footnote 74 to Ofcom’s General Risk Level Table), or wondering whether their service can be ‘low risk’ if they allow users to post hyperlinks.  (Ofcom has determined that hyperlinks are a risk factor for six of the 17 kinds of priority offence designated by the Act: terrorism, CSEA, fraud and financial services, drugs and psychoactive substances, encouraging or assisting suicide and foreign interference offences). 

Grumbles from whichever quarter will come as no great surprise to those (this author included) who have argued from the start that the legislation is an ill-conceived, unworkable mess which was always destined to end in tears. Even so, and making due allowance for the well-nigh impossible task with which Ofcom has been landed, there is an abiding impression that Ofcom’s efforts to flesh out the service provider duties - risk assessment in particular – could have been made easier to understand. 

The original illegal harms consultation drew flak for its sheer bulk: a tad over 1,700 pages. The final round of illegal harms documents is even weightier: over 2,400 pages in all. It is in two parts. The first is a Statement. In accordance with Ofcom’s standing consultation principles, it aims to explain what Ofcom is going to do and why, showing how respondents’ views helped to shape Ofcom’s decisions. That amounts to 1,175 pages, including two summaries. 

The remaining 1,248 pages consist of statutory documents: those that the Act itself requires Ofcom to produce. These are a Register of Risks, Risk Assessment Guidance, Risk Profiles, Record Keeping and Review Guidance, a User to User Illegal Content Code of Practice, a Search Service Illegal Content Code of Practice, Illegal Content Judgements Guidance, Enforcement Guidance, and Guidance on Content Communicated Publicly and Privately. Drafts of the two Codes of Practice were laid before Parliament on 16 December 2024. Ofcom can issue them in final form upon completion of that procedure.

When it comes to ease of understanding, it is tempting to go on at length about the terminological tangles to be found in the documents, particularly around ‘harm’, ‘illegal harm’ and ‘kinds of illegal harm’. But really, what more is worth saying? Ofcom’s documents are, to all intents and purposes, set in stone. Does it help anyone to pen another few thousand words bemoaning opaque language? Other than in giving comfort that they are not alone to those struggling to understand the documents, probably not. Everyone has to get on and make the best of it.

So one illustration will have to suffice. ‘Illegal harm’ is not a term defined or used in the Act. In the original consultation documents Ofcom’s use of ‘illegal harm’ veered back and forth between the underlying offence, the harm caused by an offence, and a general catch-all for the illegality duties; often leaving the reader to guess in which sense it was being used. 

The final documents are improved in some places, but introduce new conundrums in others. One of the most striking examples is paragraph 2.35 and Table 6 of the Risk Assessment Guidance (emphasis added to all quotations below). 

Paragraph 2.35 says: 

“When evaluating the likelihood of a kind of illegal content occurring on your service and the chance of your service being used to commit or facilitate an offence, you should ask yourself the questions set out in Table 6.”

Table 6 is headed: 

“What to consider when assessing the likelihood of illegal content”

The table then switches from ‘illegal content’ to ‘illegal harm’. The first suggested question in the table is whether risk factors indicate that: 

“this kind of illegal harm is likely to occur on your service?” 

‘Illegal harm’ is footnoted with a reference to a definition in the Introduction: 

“the physical or psychological harm which can occur from a user encountering any kind of illegal content…”. 

So what is the reader supposed to be evaluating: the likelihood of occurrence of illegal content, or the likelihood of physical or psychological harm arising from such content? 

If ‘Illegal Harm’ had been nothing more than a title that Ofcom gave to its illegality workstream, then what the term actually meant might not have mattered very much. But the various duties that the Act places on service providers, and even Ofcom’s own duties, rest on carefully crafted distinctions between illegal content, underlying criminal offences and harm (meaning physical or psychological harm) arising from such illegality. 

That can be seen in this visualisation. It illustrates the U2U service provider illegality duties - both risk assessment and substantive - together with the Ofcom duty to prepare an illegality Risks Register and Risk Profiles.  The visualisation divides the duties into four zones (A, B, C and D), explained below. 

A: The duties in this zone require U2U providers to assess certain risks related to illegal content (priority and non-priority). These risks are independent of and unrelated to harm. The risks to be assessed have no direct counterpart in any of the substantive safety duties in Section 10. Their relevance to those safety duties probably lies in the proportionality assessment of measures to fulfil the Section 10 duties. 

Although the service provider’s risk assessment has to take account of the Ofcom Risk Profile that relates to its particular kind of service, Ofcom’s Risk Profiles are narrower in scope than the service provider risk assessment. Under the Act Ofcom’s Risks Register and Risk Profiles are limited to the risk of harm (meaning physical or psychological harm) to individuals in the UK presented by illegal content present on U2U services and by the use of such services for the commission or facilitation of priority offences. 

B:  This zone contains harm-related duties (identified in yellow): Ofcom Risk Profiles, several service provider risk assessment duties framed by reference to harm, plus the one substantive Section 10 duty framed by reference to harm (fed by the results of the harm-related risk assessment duties). Harm has its standard meaning in the Act: physical or psychological harm. 

C: This zone contains two service provider risk assessment duties which are independent of and unrelated to risk of harm, but which feed directly into a corresponding substantive Section 10 duty. 

D: This zone contains the substantive Section 10 duties: one based on harm and three which stand alone. Those three are not directly coupled to the service provider’s risk assessment.

This web of duties is undeniably complex. One can sympathise with the challenge of rendering it into a practical and readily understandable risk assessment process capable of feeding the substantive duties.  Nevertheless, a plainer and more consistently applied approach to terminology in Ofcom's documents would have paid dividends.