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Questions about whether there are any laws concerning spreading disinformation online, which I discussed here last week, have now turned to the Online Safety Act (OSA).
In the wake of the riots – sparked by the deaths of three young girls in Stockport – much has been made of the mis- and disinformation that fuelled them, and how easily it spread unabated across social media.
After the unrest came to a sudden halt on August 7, London Mayor Sadiq Khan stated: “I think very swiftly the government has realised there needs to be amendments to the Online Safety Act. I think what the government should do very quickly is check if it is fit for purpose. I think it’s not fit for purpose”.
Cabinet Office Minister Nick Thomas Symonds told Sky News that although aspects of the OSA haven’t come into effect yet, “we stand ready to make changes if necessary” and that “I think we will be looking at the legal framework that exists for regulating the platform providers.”
And Prime Minister Keir Starmer stressed that social media are “not a law-free zone”, warning “we’re going to have to look more broadly at social media after this disorder”.
However, before anyone turns to reforming the OSA, it’s extremely important to understand what it does.
In short, it places a range of duties on online service providers that makes them responsible for the safety of users’ of their platforms. Providers are legally required to design and implement systems and processes that will reduce the risks that their platforms are used to carry material that is illegal. And if it does appear, they will be legally obliged to remove it quickly. They must also introduce measures to protect children from certain kinds of legal-but-harmful material.
But the crucial point here is that, for the most part, the OSA does not create new categories of illegal content – it simply requires companies to take action against material which is already illegal under the various laws listed in Schedules 5-7 of the Act. Although in certain cases it does introduce new clauses into existing legislation, such as the Sexual Offences Act 2003.
But whilst there are laws against, for example, stirring up hatred and inciting violence, there are almost none against spreading mis- and disinformation. The former consists of content which those spreading it may not realise is false or misleading. The latter is false or misleading material that is spread with the intention to deceive, and often to cause harm of some kind.
So what do we have on the statute book concerning dis- and misinformation? Two things.
Firstly, there’s section 179(1) of the OSA, which reforms sections of the Malicious Communications Act 1988 and the Communications Act 2003 to produce a false communications offence. This is committed if someone sends a message that contains information that they know to be false and intend it to cause “non-trivial psychological or physical harm to a likely audience”.
Section 180 notes that “a recognised news publisher cannot commit an offence” under this section, thereby letting the online versions of British newspapers completely off the hook.
However, the main problem here is that any prosecution for such an offence would have to prove that, when a defendant sent the message, they both knew it to be false and also intended it to cause “non-trivial psychological or physical harm” – the meaning of which is unclear.
It is thus very hard to see how a case under section 179 could be successfully brought against, for example, Bernie Spofforth, who has been accused of putting online the first post wrongly describing the Southport attacker. She stated at the time that if the details were true, “all hell is about to break loose”.
But they weren’t, and it did after her post went viral. She later stated, “I did not make it up. I first received this information from somebody in Southport”, but by that time the harm had been done, although it should be pointed out that Spofforth never claimed that she had been intent on causing harm in the first place.
The second piece of relevant legislation is section 13 of the National Security Act 2023. This makes it an offence to prejudice “the safety or interests of the United Kingdom” by, among other things, engaging with state-backed disinformation campaigns.
As Ofcom mentions in part of its consultation on the OSA, these can “erode trust in the democratic process” and, as we have seen in the UK in recent years, disinformation of this kind is extremely concerning, whether or not state-backed.
Social media are particularly vulnerable to this kind of activity, as perpetrators can create fake profiles which can then be manipulated by bots and distributed algorithmically.
The Act would be unlikely to engage much of the kind of disinformation which has caused such consternation in the case of the riots. Much of this is home-grown, and, even when it does emanate from abroad, it would be extremely difficult to prove to a legal standard that its origins lay in an actual state operation.
Furthermore, Ofcom tends to stress the harm that this kind of disinformation does to individuals – very much in line with the definition of harm at section 234 of the OSA as consisting of “physical and psychological harm”, as opposed to broader systemic harms impacting society as a whole.
In its consultation, it states that “in most cases the harms we have looked at primarily affect the individual experiencing them”. And in discussing the harm done by “false communications” the consultation notes that “we expect that false communications are done to elicit a response from someone. This may be to influence them into undertaking a certain activity or to cause psychological impacts to an individual, suc