On 8 February 2022, the Queen Mary Legal Advice Centre and Mishcon de Reya published a note on the draft Online Safety Bill. The purpose of this exercise was to look at the draft Bill from the perspective of victims of image based sexual abuse "revenge porn" (we refer to them as SPITE victims – Sharing and Publishing Images To Embarrass), and to propose modest amendments that would improve the protection provided to them.
The final version of the Bill to be put to Parliament was published on 18 March 2022. We have reviewed this to see which of our recommendations have been taken on board. In short, while there is room for improvement, we consider that the most recent amendments represent a significant step forwards for victims of "revenge porn". Many of our proposals have been adopted and the Government has also provided additional protections by including a new criminal offence in relation to "cyber flashing" and other new "Harmful, false and threatening communications offences". There are, however, still some further amendments which could be made to provide even better protection, and we hope that Parliament will see fit to include these in the final legislation.
The term "illegal content" (formerly in section 41, now section 52), now includes "content which amounts to an offence specified in Schedule 7".
Schedule 7 includes offences relating to image-based sexual abuse, most importantly content which: (i) amounts to an offence under the section 63 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images); and (ii) offence under section 33 of the Criminal Justice and Courts Act 2015 (disclosing, or threatening to disclose, private sexual photographs and films with intent to cause distress). While our recommendation was that image-based sexual abuse should be explicitly defined and included within the scope of harmful content under the Bill, we consider that this amendment has the same effect, and is an important step forward in protecting SPITE victims.
Schedule 7 also includes offences relating to public order, harassment, stalking and fear or provocation of violence. This represents progress in the recognition of violence against women, although we think that explicit reference should be made to such harm. We say this recognising that not all SPITE victims identify as female.
We recommended that commercial pornography websites should be specifically named within the Bill and subject to a higher level of scrutiny by OFCOM, which should be empowered to issue take down notices.
Section 66 of the revised Bill introduces various new definitions relating to such sites, including “pornographic content”, “provider pornographic content”, and “regulated provider pornographic content”. Sections 67 – 69 impose new duties on providers that fall under the scope of these definitions and ultimately a higher level of scrutiny by OFCOM on such providers. This is very welcome.
The tier system for regulated services continues to be based on the number of users and functionalities of the service provider). While the Bill now places the onus on the Government to determine what content could be harmful, rather than social media platforms, we think it should be revised to ensure that an increased amount of harmful and illegal content is caught within the highest tiers. This should include a rebuttable presumption that websites that host pornographic content are 'Category 1' services.
The revised Bill addresses issues of online anonymity, which is a major concern for SPITE victims. Online anonymity often makes it very difficult to prove who is behind image-based sexual abuse (even if the victim knows that there is only one person it can be and taking into account circumstantial evidence).
Category 1 providers (i.e. companies with large numbers of users) will be required to offer ways for users to verify their identities and control who can interact with them, including the ability to block anonymous trolls and other users who have not verified their identity. Platforms must also provide users with options to opt out of viewing harmful content.
As this only applies to Category 1 providers, this is another reason that there should be a rebuttable presumption that all websites that host pornographic content are Category 1 services.
None of our recommendations in this regard have been adopted:
- The Bill is yet to provide further guidance under section 140 (formerly section 106) on which entities are eligible to make a super complaint to OFCOM. A suitable entity (or more than one) needs to be appointed to represent the interests of SPITE victims.
- There should be a duty on OFCOM to assess the risks of harms to particular groups of users, like SPITE victims, and assess how such groups may be disproportionately exposed to online harms.
- The guidance on risk assessments under section 84 of the Bill (formerly section 62) should set out how harm arises from image-based sexual abuse content and how it plans to regulate service providers that provide a platform for such content.
Warning notices and collecting information
None of our recommendations in this regard have been adopted:
- We consider that the Bill should require OFCOM to collect information specifically linked to image-based sexual abuse.
- The skilled persons’ report under section 88 of the Bill (formerly section 74) should be prepared in consultation with a professional with relevant experience in developing algorithms to identify and remove image-based sexual abuse content.
- The provisions relating to OFCOM's power to issue notices to deal with terrorism and Child Sexual Exploitation and Abuse (CSEA) content (sections 103 – 109 of the Bill) should be amended to include specific reference to image-based sexual abuse content. Like with terrorism and CSEA content, OFCOM should require regulated services to use accredited technology to identify and remove image-based sexual abuse content.
This is the only issue where we feel that the Bill has regressed. We recommended that:
- The duty to promote media literacy, formerly under section 103 of the Bill, could be expanded to outline the specific goals it aims to achieve e.g. removing terrorism, CSEA and image-based sexual abuse content.
- OFCOM should be required to work with schools to promote media literacy from an early age with specific reference to content which is image-based sexual abuse where appropriate (e.g. by way of initiatives such as SPITE for Schools). This could be achieved by placing a requirement on OFCOM to work with Department of Education in order to include media literacy around image-based sexual abuse in the National Curriculum.
- The Bill should be expanded to list the type, frequency and outreach objectives (e.g. number and demographic of people targeted) of media literacy campaigns that OFCOM must implement. Guidance about the evaluation of educational initiatives should also be included.
Regrettably, the duty to promote media literacy has been removed as a specific provision under the Bill. Instead, OFCOM's duty to promote media literacy is referred to only within the context of its existing duty under section 11 of the Communications Act 2003. This is an unfortunate step backwards with respect to the protection of SPITE victims and preventative work which should be undertaken.
Additional protection provided by the Bill
Part 10 of the Bill contains four new communications offences, relating to harmful communications, false communications, threatening communications and "cyber flashing". These replace the offences in section 127 of the Communications Act 2003 and the Malicious Communications Act 1988, as recommended by the Law Commission. This should significantly increase protection of SPITE victims and is very welcome. It is now important that the police and the Crown Prosecution Service (CPS) are given sufficient resources to investigate and prosecute these crimes. It is imperative that suitable training is delivered to front line officers and those working within the CPS.
To read more about the SPITE project or seek support if you have been the victim of image-based sexual abuse, visit the Queen Mary Legal Advice Centre.