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Gov Extend UK Online Safety Bill via New List of Criminal Content

Friday, Feb 4th, 2022 (10:30 pm) - Score 1,656
censored access internet

The Government’s new Online Safety Bill (OSB), which tasks Ofcom with tackling “harmful” content online through website bans, fines and other sanctions, has today extended the legislation via a new list of “criminal content” (e.g. online drug and weapons dealing, people smuggling, revenge porn, fraud etc.) for tech firms to remove as a priority.

A lot of online content today is governed by a somewhat self-regulatory approach, which has struggled to keep pace. Various examples exist for “harmful” content, such as the rise of the ISIS terrorist group, as well as propaganda from hostile countries, online bullying and the spread of COVID-19 related conspiracy theories etc. Social media firms usually do catch-up, but they’re often late to the party.

NOTE: Companies that fail to comply with the new law could face fines of up to £18m, or 10% of their annual global turnover, whichever is highest. But it’s unclear how this might apply to smaller sites.

Previously the bill would have forced internet content providers (e.g. social media sites, video-sharing platforms and search engines) to take such content down after it had been reported to them by users, but today’s changes mean that content falling under the ‘Priority Illegal Offences‘ category must be proactively removed to “prevent people being exposed in the first place.

However, balancing all of this against complex issues of context (e.g. people joking about blowing up a city in a video game vs actual terrorists), parody, the application of the rules to non-UK sites, political speech and the risk from overzealous automated filtering systems – since manually moderating all content on major platforms would be economically impossible – is a nightmare to get right. It may even be unworkable for smaller sites.

The big change today is that the Government have extended the new bill by setting out a longer list of “criminal content” for “tech firms” to “remove as a priority“. The priority illegal offences currently listed in the draft bill are terrorism, child sexual abuse and exploitation. But this list just got a lot longer.

Naming these offences on the face of the bill removes the need for them to be set out in secondary legislation later, and Ofcom can take faster enforcement action against tech firms which fail to remove the named illegal content. Luckily most, but perhaps not all, of this is much easier to understand than the grey area of “lawful but still harmful” content tackled elsewhere in the OSB.

The offences will fall in the following categories:

Encouraging or assisting suicide

Offences relating to sexual images i.e. revenge and extreme pornography

Incitement to and threats of violence

Hate crime

Public order offences – harassment and stalking

Drug-related offences

Weapons / firearms offences

Fraud and financial crime

Money laundering

Controlling, causing or inciting prostitutes for gain

Organised immigration offences

The Government states that, in order to “proactively tackle the priority offences“, firms will need to make sure the features, functionalities and algorithms of their services are “designed to prevent their users encountering them” and minimise the length of time this content is available. “This could be achieved by automated or human content moderation, banning illegal search terms, spotting suspicious users and having effective systems in place to prevent banned users opening new accounts,” said the announcement.

Three new criminal offences, recommended by the Law Commission, will also be added to the bill to tackle domestic violence, as well as threats to rape and kill. We should clarify that the draft OSB is focussed on the regulation of online platforms, while the new criminal offences will apply to individuals. Crucially, online platforms will need to take account of context when considering how to moderate such content – easier said than done (sometimes context only becomes clear when you look across content from several platforms for the same users).

The new offences will capture a wider range of harms in different types of private and public online communication methods. These include harmful and abusive emails, social media posts and WhatsApp messages, as well as ‘pile-on’ harassment where many people target abuse at an individual, such as in website comment sections. None of the offences will apply to regulated media such as print and online journalism, TV, radio and film.

The Three New Offences

➤ A ‘genuinely threatening’ communications offence, where communications are sent or posted to convey a threat of serious harm.

This offence is designed to better capture online threats to rape, kill and inflict physical violence or cause people serious financial harm. It addresses limitations with the existing laws which capture ‘menacing’ aspects of the threatening communication but not genuine and serious threatening behaviour.

It will offer better protection for public figures such as MPs, celebrities or footballers who receive extremely harmful messages threatening their safety. It will address coercive and controlling online behaviour and stalking, including, in the context of domestic abuse, threats related to a partner’s finances or threats concerning physical harm.

➤ A harm-based communications offence to capture communications sent to cause harm without a reasonable excuse.

This offence will make it easier to prosecute online abusers by abandoning the requirement under the old offences for content to fit within proscribed yet ambiguous categories such as “grossly offensive,” “obscene” or “indecent”. Instead it is based on the intended psychological harm, amounting to at least serious distress, to the person who receives the communication, rather than requiring proof that harm was caused. The new offences will address the technical limitations of the old offences and ensure that harmful communications posted to a likely audience are captured.

The new offence will consider the context in which the communication was sent. This will better address forms of violence against women and girls, such as communications which may not seem obviously harmful but when looked at in light of a pattern of abuse could cause serious distress. For example, in the instance where a survivor of domestic abuse has fled to a secret location and the abuser sends the individual a picture of their front door or street sign.

It will better protect people’s right to free expression online. Communications that are offensive but not harmful and communications sent with no intention to cause harm, such as consensual communication between adults, will not be captured. It will have to be proven in court that a defendant sent a communication without any reasonable excuse and did so intending to cause serious distress or worse, with exemptions for communication which contributes to a matter of public interest.

➤ An offence for when a person sends a communication they know to be false with the intention to cause non-trivial emotional, psychological or physical harm.

Although there is an existing offence in the Communications Act that captures knowingly false communications, this new offence raises the current threshold of criminality. It covers false communications deliberately sent to inflict harm, such as hoax bomb threats, as opposed to misinformation where people are unaware what they are sending is false or genuinely believe it to be true. For example, if an individual posted on social media encouraging people to inject antiseptic to cure themselves of coronavirus, a court would have to prove that the individual knew this was not true before posting it.

The maximum sentences for each offence will differ. If someone is found guilty of a harm based offence they could go to prison for up to 2 years, or up to 51 weeks for the false communication offence and up to 5 years for the threatening communications offence. The maximum sentence was 6 months under the Communications Act and 2 years under the Malicious Communications Act.

The government is also considering the Law Commission’s recommendations for specific offences to be created relating to cyberflashing, encouraging self-harm and epilepsy trolling.

Nadine Dorries, Digital Secretary, said:

“This government said it would legislate to make the UK the safest place in the world to be online while enshrining free speech, and that’s exactly what we are going to do. Our world leading bill will protect children from online abuse and harms, protecting the most vulnerable from accessing harmful content, and ensuring there is no safe space for terrorists to hide online.

We are listening to MPs, charities and campaigners who have wanted us to strengthen the legislation, and today’s changes mean we will be able to bring the full weight of the law against those who use the internet as a weapon to ruin people’s lives and do so quicker and more effectively.”

As it stands, the Government faces an incredibly difficult balancing act. On the one hand they need to do more to tackle harmful online content, but on the other they have to avoid the risk of creating a Draconian censorship regime and harming free speech, even though that might not be their intention.

Meanwhile, few could disagree with many of the new offences identified today. But at the same time there’s a huge question mark hanging over the viability of implementing all this and whether Ofcom, or the police, have even remotely enough resources to effectively cover the colossal amount of internet content demanded by this law.

Finally, for those who might be hoping that the OSB solves what some view as “the Facebook problem” (replace Facebook with Twitter etc. if you must). Just remember, if you impose a heavy regulatory model that treats all websites and internet content services as if they were the same size and have the same resources as Facebook, then all you do is destroy everything that isn’t Facebook. The result is more Facebook.

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Mark-Jackson
By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on X (Twitter), Mastodon, Facebook and .
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Comments
17 Responses
  1. Avatar photo Mike says:

    Won’t be long before foreign sites start getting banned Great Firewall style.

    At least we have VPN’s for now.

    1. Avatar photo Anonymous says:

      Are you a kiddy fiddler by any chance?

  2. Avatar photo Anthony Goodman says:

    “Various examples exist for “harmful” content, such as the rise of the ISIS terrorist group”…They always say nonsense like this to get people onboard but in practice all they go after is conservative speakers and anyone speaking out about the government not bothering to tackle the real issues.

    1. Avatar photo MattP79 says:

      Ditto with “organised immigration offences” – more dog whistling to the faithful. Entering a country with the intent of claiming asylum is not a criminal act, despite the current deplorable Home Secretary claiming so.

    2. Avatar photo Bilal says:

      Funny thing is that the conservatives are pushing this through hahah

  3. Avatar photo Truthsayer says:

    Remember when saying the virus came from a lab or saying the vaccine didn’t prevent infection or spread were considered conspiracy theories and actively banned from multiple platforms?

    Yea the UK has a definite problem with authoritarians trying to copy the Chinese Communist Party.

    Use a VPN

    1. Avatar photo El Guapo says:

      The EU has similar plans. They voted to read your emails, instant messenger stuff too and report illegal activity. They’re also looking to ban encryption.

      I’m sure you won’t believe me, because the EU can’t do any wrong…
      So here it from a German MEP then.

      https://twitter.com/echo_pbreyer/status/1370642492899667968

    2. Avatar photo Not This Time says:

      @El Guapo Your alternative is to allow technology to conceal criminal wrongdoing rather than attempt to prevent it? The difference being that harm can be *prevented* rather than investigated after the fact. Not every plan is workable – but at least they’re attempting to find a way to keep people safe rather than throwing their hands up in the air and shrugging their shoulders.

      Apple proposed scanning all images uploaded to iCloud to ensure it wasn’t hosting CSAM. The “concerned” made them change policy, though if you aren’t in possession of illegal content I’m not sure why you’d be in favour of other people being able to do so.

    3. Avatar photo Truthsayer says:

      The EU is literally implementing social credit score systems, online security and privacy is somehow less alarming than that

    4. Avatar photo Me says:

      I agree, this is getting crazy but governments are seeing these laws as another form of control over the people, I mean I bet no one would ever believe the British government had a ‘nudge unit’ to actively try and manipulate peoples mindsets en mass.
      Sofial soceonf is the next step across Europe, this bill will lead to that of passed in the U.K., people can ignore it as much as they want but it’s alive real and working in China, it’s absolutely totalitarian in its control of people, and I thing Europe likes that idea. Say some naughty words on the internet and you won’t be allowed on a bus etc.
      Look at Scotland they passed a bill banning you from speaking what they consider to be hate crime words in the privacy of your own home.
      I was listening to the radio in the week and they had several ex and acting Police members call in, at various levels, all saying hate crimes are now the number one priority, a call claiming someone said something to someone else is now treated as a priority over burglary hence why burglaries are no longer investigated, they say it’s crazy but it’s coming direct from their superiors. Some said they feel like they are only social workers now, not Policeman or women.

      This new bill will lead to removal of all insults online, not petty replies to people if your in Britain. Because they won’t be able to clarify this or Police it properly.

    5. Avatar photo GaryH says:

      @Not this time, I assume then you would have no issue with the post office or couriers opening and reading through your mail and deliveries? You know in case you might be doing something wrong. How about random address searches with no cause other than to check in case you do have something.

  4. Avatar photo El Guapo says:

    I guess some ISPs with “no filtering” and “no spying” will have to remove that promise now. Or will they try to fight it?

    1. Avatar photo Neil says:

      At the moment, it looks as if the extended obligations will still apply only to platforms, not access providers. The draft bill has access blocking provisions as a backstop, but these require a court order, and it is not clear whether Ofcom will seek an order against access providers which do not already have blocking capability.

    2. Avatar photo New_Londoner says:

      @Damien
      As far as I can tell, AAISP is one of the organisations that treats malware filtering as censorship and so is happy to needlessly expose its users to that malware rather than blocking it. It also appears to allow access to sites known to host child sex abuse material.

      Whilst no filtering system is foolproof, I can think of no good reason for ISPs to take this approach – by all means allow users to opt-out if you must but this level of basic filtering really ought to be part of any offering from quality operators. That being the case, I would never recommend anyone use AAISP or others with similar policies and would suggest the inclusion of their IP addresses on blocklists given the high risk that they could be allowing the transit of malware.

    3. Avatar photo Neil says:

      > Whilst no filtering system is foolproof, I can think of no good reason for ISPs to take this approach [of not filtering]

      Off the top of my head, I can think of five.

      1) Cost. Even something as notionally basic as implementing the IWF CAIC list has a cost (including IWF membership, infrastructure for the blocking kit, and the cost of running and doing the network integration activity).

      2) Complexity for the provider. It’s yet another system to manage and maintain, troubleshoot, and support. And that’s before one gets into the realm of problems with what is on the list (e.g. dealing with overblocking).

      3) Net neutrality. While blocking for the purpose of network security is an exception to the framework on net neutrality / open Internet in the UK, the IWF CAIC list is not a legal obligation, and there is no exemption which covers it. To date, unsurprisingly, Ofcom has turned a blind eye, and it is possible (likely, I suspect), that this lacuna will be closed in a revised framework, but currently, in the absence of a legal obligation to apply the IWF filter, Internet access providers breach the net neutrality framework to do it. (Whether that’s a problem is another matter, but ISPs should not be left in this legal mess.)

      4) Ease of circumvention. If someone is intent of circumventing a network-level filter, they’ll do so, trivially. As a tool for inhibiting access by someone who really wants to access CSAM, typical ISP network-level controls do little to nothing. For stopping someone “stumbling upon” that type of material, typical network-level filtering might be effective, but I wonder how many people “stumble upon” this type of content. (Anecdote is not the same as data, but in the 25 or so years I’ve used the Internet, I’ve never seen CSAM, nor the IWF block page to indicate I’ve accessed a page which was blocked. How many people who are not searching for CSAM actually see it?)

      5) Ease by which a customer can do their own filtering if they want. Getting hold of the IWF CAIC list is not an option (well, not trivially), but if a subscriber wants to do malware filtering, or block adverts or trackers, they can do so pretty easily. At least, IMHO, I think it’s easier for a customer to do what they want in terms of filtering, than it is for an ISP which currently does not do filtering on all its connections and not cause a problem.

  5. Avatar photo Buggerlugz says:

    Great thing we’ve got the highly talented and tech savy Nadine Dorries all over this isn’t it?

    Just kidding, she’s a contemptible car crash.

  6. Avatar photo Thinking soul says:

    I suppose a suitable question to ask is that is this the start of gradual ‘consensual’ internet censorship. We see it and know of it in other countries.
    In essence, will it start with ‘we’re blocking these bad guys’ and ‘people who do this and that crime’. And of course, these kinds of people and actions aren’t good.
    But then, how long will the list get and under what criteria will claims be made?
    With journalists being extradited, and our leaders, in absolute mistrust, having parties whilst their people are locked down, who knows what’s next?

Comments are closed

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