Readers will be aware that the recent murders of three young girls in Southport led to riots. The riots in turn led to online incitement to violence as well as disinformation. 

In July 2021, the Law Commission of England and Wales proposed to reform the law to protect victims from online and social media-based abuse.  Its proposals are largely reflected in Part 10 of the Online Safety Act.  Part 10 came into force on 31 January 2024 and includes various ‘communications offences’.

The new provisions have been used in the context of the riots and online disinformation, as well as in the context of the “honeytrap” involving a Conservative MP, and unwanted messages of a sexual nature being sent to various other members of parliament.

What do the new offences cover?

The offences are:

  • Sending a false communication while knowing it to be false, intending to cause non-trivial psychological or physical harm to a likely audience, and with no reasonable excuse (England and Wales and Northern Ireland only) (section 179). There are exemptions for recognised news publishers and various media providers under section 180. The “likely audience” is anyone who might encounter a subsequent message forwarding or sharing the content of the original message. 
  • Sending a communication threatening death or serious harm while intending or being reckless as to whether the object of the threat would fear that the threat would be carried out (England and Wales and NI only) (section 181).
  • Sending a message under section 179 and 181 means sending, transmitting or publishing a communication, including an oral communication, by electronic means or sending, or giving, a letter or a thing of any other description. The offence applies both online and offline. “Sending a message” covers both private and public communication. A person may commit an offence if they forward another person’s message or share another's post.
  • Sending or showing flashing images electronically (England and Wales and NI) when it is reasonably foreseeable that an individual with epilepsy will see it and the sender intended that the individual would suffer harm and the sender has no reasonable excuse for sending the images (section 183).
  • Sending a communication that encourages serious self-harm with intention (England and Wales, NI and Scotland) (section 184)
  • Intentionally sending (electronically or otherwise) an unsolicited sexual image (including a manufactured intimate image or "deepfake") with the intention of causing the recipient to be caused alarm, distress or humiliation, or for sexual gratification and being reckless about whether the recipient will be caused alarm, distress or humiliation (cyberflashing). In addition, there is an offence of sharing or threatening to share an intimate photograph or film. Both these offences are inserted into the Sexual Offences Act 2003.

So what are the relevant offences for those involved in the unrest?  It appears that they were accused of spreading disinformation online and charged with the offence under section 179.  It has been reported in the media that an individual had a three month prison sentence imposed on him following a conviction under the false communications offence.  He had posted a video in which he claimed, falsely, that he was being chased by far-right rioters. 

In relation to the “honey trap” case, which involved so-called “catfishing” (the creation of a fictitious online persona, or fake identity with the intent to deceive, usually to mislead a victim into an online romantic relationship or to commit financial fraud), it is likely that the perpetrator has been charged under section 179 and/or section 187.  In addition, some MPs said that they had received unsolicited images.

As well as the offences, the OSA introduces new duties on service providers to combat online harms which we have discussed here. It received Royal Assent in October 2023 and Ofcom has published a timeline of the actions it intends to take to prepare for regulation. These provisions of the OSA will not take effect until the Secretary of State has made secondary legislation to implement them, and Ofcom has published the relevant codes of practice.

In early August, Ofcom published an open letter to online service providers operating in the UK about the increased risk of their platforms being used to stir up hatred, provoke violence and commit other offences under UK law, in the context of the riots.