There has been a lot of debate concerning the legal duties put on social media platforms, but less so regarding the introduction of a number of new criminal offences for users of such platforms.
Part 10 of the Act, which comes into force on 31 January 2024, introduces a number of new “communication offences” for users who send harmful messages on a social media platform, messaging service, dating app or by “airdrop“. The new communication offences will apply to users variously across the home nations. Part 10 of the Act will have retrospective effect and includes:
- Section 179 of the Act: a false communication offence. Communications containing false information, sent to cause harm to another (maximum of 51 weeks’ imprisonment and a fine);
- Section 181 of the Act: a threatening communications offence. Communications containing threats of death or serious harm, either recklessly or deliberately sent to cause the reader fear (maximum of 5 years’ imprisonment, and a fine);
- Section 183 of the Act: sending or showing flashing images (known as “Epilepsy Trolling“). Communications which contain flashing images sent to those with epilepsy attracting a maximum sentence of 5 years’ imprisonment, and a fine;
- Section 184 of the Act: the offence of encouraging or assisting serious self-harm. Those guilty of encouraging someone to cause serious self-harm, regardless of whether or not victims go on to injure themselves face a sentence of 5 years’ imprisonment and a fine.
- Sections 187and 188 of the Act (to be inserted into the Sexual Offences Act 2003): the offences of sending or threatening to send unsolicited images of a sexual nature (including “deepfake” images) or intimate videos. These offences cover communications via social media, dating apps or device-to-device sharing. Offenders will face a custodial sentence of up to 2 years, and a fine;
The offences created by the Act target the growing trend of online and digital abuse and aim to create a safer online environment. To date, prosecutors have tended to combat these activities by reference to established common law offences or statutory offences such as harassment, which are not fit for purpose for some online conduct.
In respect of (1) and (2) above, the new offences of false or threatening communications, “sending a message” covers a number of different mediums – both online and offline, written or oral. It is important to note that a sender cannot be an internet service provider – it is the person (or persons) who send the message itself, or causes it to be sent.
The new offences created at (5) above replace those provision of Section 33-35 of the Criminal Justice and Courts Act 2015, which are now repealed. These were the offences typically relied upon for prosecutors seeking to charge instances of “cyber flashing” and “revenge porn”. The hope being now that the Act introduces a more robust prosecutorial framework for these crimes.
As with any new offences, we wait to see how these offences will be dealt with by the Courts and the deterrent effect that will be introduced. The 2023 King’s Speech promised further new powers in a Criminal Justice Bill which would further criminalise the sharing of intimate images and expand the offences of encouraging or assisting self-harm.