The Online Safety Bill: a reduction in its bite

Since the Online Harms White Paper was introduced in April 2019, the road to delivering the government’s manifesto commitment to make the ‘UK the safest place to be online’ has been far from smooth. Its progress has inevitably been hampered by the covid-19 pandemic and the turmoil that has come to characterise the Conservative government, coupled with the deep tensions that exist post-Brexit between those Tories who are keen to rein in Big Tech and those who seek further to reduce regulation. The Online Safety Bill has changed several times over its lifetime and its ultimate appearance on the statute books, whether at all or in its present (albeit very diluted) state, remains far from guaranteed. 

One of the many online harms the bill seeks to tackle is the phenomenon which is often dubbed ‘revenge porn,’ but which is more appropriately termed ‘intimate image abuse.’ Currently, only the disclosure (or threats thereof) of private sexual images to another person or people without consent with the intention of causing distress is criminalised. Disclosure to the person featured in the images is not covered by existing legislation, nor is disclosure with other intentions (to control, for example) or disclosure of deep fakes. The Online Safety Bill seeks to plug these gaps by introducing new offences and increasing their maximum sentence. The new general offence of sharing an intimate image without consent and aggravated offences of sharing with intent to obtain sexual gratification and cause alarm, distress or humiliation, respectively, promise to provide a more robust response to those who share intimate images without consent and are, largely, a welcome development.  

The removal of images online

Perhaps more significantly, there is currently no legislative provision to have images removed from online spaces, with some images remaining visible online, including on dedicated ‘revenge porn’ sites, even after prosecution and conviction. In imposing duties on providers proactively to mitigate the risk that their services are used for illegal activity or to share illegal content and to address illegal content once it appears on their service, the bill promises to get tough on platforms who allow intimate images to be posted. The bill grants an independent regulator, the Office of Communications, otherwise known as Ofcom, powers to sanction companies who do not comply with these duties (including criminal sanctions for directors).

Yet, the recent concession on, so-called, harmful but legal content to those Conservative members who felt that previous, tougher versions of the bill unacceptably compromised free speech, has undoubtedly reduced its bite. In abandoning all provisions on ‘content harmful to adults’ and replacing them with new terms of service duties, the government has chosen not to put a duty on platforms to assess the risk of harm to adults from content that is harmful but not criminal. This has significantly compromised the bill in its ability to address harms associated with intimate image abuse, not all of which will reach the criminal threshold. Even under the revised disclosure offence, there will be conduct that is not criminalised and the disservice that is done to women by requiring them to fit their lived experiences into narrow, legal categories is well documented. It also means that, ultimately, the bill will do little to address the wider context in which intimate image abuse is encouraged and endorsed by an online environment in which women and girls are on the receiving end of targeted abuse, both generally and individually.

User empowerment tools

Perhaps most problematically, in the diluted bill, the responsibility to protect users from specified harmful content is placed on users themselves via ‘user empowerment tools,’ which will be automatically turned off. By putting the onus on individual users to protect themselves from viewing content that is abusive or encourages hate against them, the bill is both a massive retreat from previous government promises and a huge disappointment. It provides no incentive for platforms to design their services in ways that discourages, addresses or reduces harmful content. In relation to intimate image abuse, the effective shifting onto women themselves of content that has either not made the criminal threshold for a disclosure offence or is otherwise harmful in supporting and sustaining the gendered context which makes such disclosures possible and sustainable, it also continues a familiar narrative – that the state will not provide protection; women must negotiate and manage our safety, both in the real and virtual world, ourselves.

Dr Kirsty Welsh is a senior lecturer at Nottingham Law School
ntu.ac.uk