Guidance on prosecuting offences under the Online Safety Act 2023

The Online Safety Act 2023 (the OSA 2023) now has a firmly established statutory footing, and is making significant waves in the online regulation landscape. To further consolidate the OSA, the Crown Prosecution Service (CPS) has published new and updated guidance which is intended to help prosecutors make decisions on the newly established communication offences.

The OSA 2023 repealed the provisions of the Malicious Communications Act 1988 (the MCA 1988) and Communications Act 2003 (the CA 2003) dealing with false messages, and the provisions of the MCA 1988 relating to threatening communications. The MCA 1988 and CA 2003 continue to encompass ‘grossly offensive’ and ‘indecent’ messages. The CA 2003 also deals with messages which are obscene or menacing, and persistently making use of a public communications network.

As described in more detail in our previous blog, the OSA 2023 introduced a series of new communications offences which came into force from 31 January 2024, including:

• A false communications offence (section 179)
• A threatening communications offence (section 181)
• An offence of sending/showing flashing images electronically (sometimes known as epilepsy trolling) (section 183)
• An offence of encouraging or assisting serious self-harm (section 184)
• An offence of sending photographs or film of genitals (cyber-flashing) (section 66A Sexual Offences Act 2003, as inserted by section 187 OSA 2023])
• An offence of sharing or threatening to share intimate photographs or film (section 66B(1)-(4), as inserted by section 188 OSA 2023)
• An offence in relation to false child sexual abuse and exploitation reporting to the National Crime Agency (section 69), which is not yet in force

The new CPS prosecution guidance on communications offences (the New Guidance) was published following passage of the OSA 2023, and provides a comprehensive overview of the offences set out in that Act as well as points of note for prosecutors. In addition, on 31 January 2024, the CPS updated its existing guidance on Cybercrime (the Updated Guidance) to cover the OSA 2023 offences.

The New Guidance reminds prosecutors to bear in mind that communications may also involve differing types of misconduct including (but not limited to): offences against the person, public justice, sexual or public order offences, contempt of court and harassment, stalking and controlling or coercive behaviour. In addition to the specific communications offences above, a number of other offences may also be committed by communicating something. The New Guidance notes that it is imperative, where there is a choice of charges, for prosecutors to apply section 6 of the Code for Crown Prosecutors (‘Selection of Charge’) when making charge selection decisions.

Sending false communications

Section 179(1) OSA 2023 creates a summary offence of sending false communications. One element of the offence is that, at the time of sending it, the sender intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience.

A ‘likely audience’ is defined in section 179(2). It includes any individual who, at the time the message is sent, is either reasonably foreseeable as someone who would encounter the message (i.e., by reading, viewing, hearing, or otherwise experiencing the message – section 182(5)); or, in the online context, would encounter a subsequent message which forwards or shares the content of the message.

Non-trivial psychological or physical harm is not defined in Part 10 of the OSA 2023. The New Guidance indicates that prosecutors should be clear, when making a charging decision, about what the evidence is concerning the suspect’s intention and how what was intended was not “trivial”, and why. The New Guidance notes there is no requirement that such harm should in fact be caused, only that it be intended.

An extended summary time limit applies to the offence under section 179(1): proceedings for such an offence may be brought within six months of the date on which evidence sufficient to justify the proceedings comes to the prosecutor’s knowledge, but in any event not more than three years from the date of commission of the offence.

Sending threatening communications

Section 181(1) OSA 2023 creates an either-way offence of sending threatening communications which carries a maximum penalty of up to five years’ imprisonment and/or an unlimited fine. The offence is committed if a message which conveys a threat of death or serious harm is sent with the requisite intention or recklessness.

‘Serious harm’ is defined in section 181(2) OSA 2023 as serious injury amounting to grievous bodily harm, rape, assault by penetration, or serious financial loss.

As the New Guidance points out, because ‘serious financial loss’ is not defined in the OSA 2023, deciding what meets this threshold will be a matter of fact and degree in the individual circumstances of each case. If the prosecution puts a case on the basis of serious financial loss, there is a statutory defence provided for at section 181(3) OSA 2023. The defendant will need to show that: (a) the threat was used to reinforce a reasonable demand; and (b) the person reasonably believed that the use of the threat was a proper means of reinforcing the demand. The New Guidance explains that, if evidence is adduced which is sufficient to raise this defence, the Court must assume the defence is satisfied unless the prosecution can disprove the defence (to the criminal standard).

According to the New Guidance, where the evidence establishes that a credible threat of death was made to an individual, the offence of making a threat to kill may also be available. Here, prosecutors should apply section 6 of the Code for Crown Prosecutors to decide on the appropriate charge. Threats to kill should only be charged where it is necessary to do so to reflect the seriousness of the offending and provide the court with adequate powers of sentence.

The threatening communications offence also captures threats where the recipient fears that someone other than the sender of the message may carry out the threat so extends to threats carried out by third parties.

There is a clear overlap with the offence of sending a menacing communication under section 127(1)(a) Communications Act 2003. The New Guidance states here that, again, section 6 of the Code for Crown Prosecutors should be applied and in particular (and as set out below) the focus should be on whether the summary section 127 offence reflects the seriousness of the offence and provides adequate powers of sentence. The section 127 offence may also be available where the legal elements of the section 181 offence are not established.

Sending / showing flashing images electronically

There are two separate either-way offences under section 183 OSA 2023 of sending or showing flashing images electronically. Each offence carries a maximum penalty of up to five years’ imprisonment and/or an unlimited fine.

Sending flashing images

Section 183(1) OSA 2023 provides that an offence is committed if a person (without reasonable excuse) sends a communication by electronic means which consists of or includes flashing images (as defined in section 183(13) OSA 2023), and meets one of two specific conditions:

Condition 1 (section 183(2) OSA 2023) is that—

• at the time the communication is sent, it is reasonably foreseeable that an individual with epilepsy would be among the individuals who would view it; and
• a person (A) sends the communication with the intention that such an individual will suffer harm as a result of viewing the flashing images.

Condition 2 (section 183(3) OSA 2023) is that, when sending the communication—

• A believes that an individual (B), whom A knows or suspects to be an individual with epilepsy will, or might, view it; and
• A intends that B will suffer harm as a result of viewing the flashing images.

The New Guidance summarises that ‘viewing’ a communication includes viewing a subsequent communication which forwards or shares the content of the communication (section 183(4) OSA 2023); and a message which includes a hyperlink to other content is to be read as referring to that content (section 183(7) OSA 2023). It goes on to explain that the offence in section 183 (1) OSA 2023 may therefore be committed by a person who forwards or shares the electronic communication, as well as by the person who originally sends it.

Other important definitions include “harm” (a seizure, or alarm or distress) and an “individual with epilepsy” (which includes, but is not limited to, an individual with photosensitive epilepsy (section 183(13) OSA 2023)). The New Guidance notes, however, there is no requirement that such harm should in fact be caused. In most cases it will be clear whether a particular image meets the definition in section 183(13) and it should not therefore be necessary to seek to prove that fact, for example by expert evidence. If there is some doubt about whether or not the image that was sent or shown carried the necessary risk, but there is sufficient evidence that the other requirements of the offence are met, then expert evidence may be considered in respect of the nature of the image.

Showing flashing images

Under Section 183(8) OSA 2023, a person commits an offence if, without reasonable excuse, they show another individual “flashing images by means of an electronic communications device”, knowing or suspecting they have epilepsy and intending them to suffer harm.

The New Guidance points out that the OSA 2023 does not define the meaning of “showing”. However, section 183(12) provides that showing flashing images includes causing flashing images to be shown; consequently, the offence may be committed between individuals who are physically remote, as well as between individuals who are within sight of each other, and may cover different ways of displaying images to another person.

The New Guidance also points to section 183(11) OSA 2023 which provides that it does not matter whether flashing images may be viewed at once (for example, a GIF that plays automatically) or only after some action (such as pressing play) is performed.

The definitions of “harm” and an “individual with epilepsy” are relevant here, too; and, again, there is no requirement that such harm should in fact be caused.

Encouraging or assisting serious self-harm

Section 184(1) OSA 2023 creates an either-way offence of encouraging or assisting serious self-harm, which carries a maximum penalty of up to five years’ imprisonment and/or an unlimited fine.

This offence is committed if the offender does a relevant act capable of encouraging or assisting the serious self-harm of another person, and the offender’s act was intended to encourage or assist the serious self-harm of another person. Section 184(4) OSA 2023 provides that the victim need not be a specific person (or class of persons) known to, or identified by, the offender.

The New Guidance notes section 184(12), which provides that an act capable of encouraging or assisting the serious self-harm of another person includes a course of conduct; and an “act” of self-harm in subsection (3) includes an omission. It goes on to explain that, for example, a person who encourages another person not to eat, not to drink or not to take required prescription medication would be captured by the offence (per section 184(13) OSA 2023).

Section 184(2) OSA 2023 sets out numerous means by which a ‘relevant act’ may occur, including: communicating in person; sending, transmitting, or publishing a communication by electronic means; showing a person a communication; publishing material other than by electronic means; and sending, giving, showing, or making a communication available to a person.

Where an offender arranges for a third party to do an act that is capable of encouraging or assisting the serious self-harm of a victim and the third party does that act, the offender is to be treated as also having done it (section 184(7) OSA 2023). Consequently, two or more individuals may commit a relevant act.

‘Serious self-harm' is defined in section 184(3) OSA 2023 as amounting to grievous bodily harm within the meaning of the Offences Against the Person Act 1861 and includes successive acts of self-harm which cumulatively reach that threshold. The New Guidance notes that an offence may be committed under section 184(1) OSA 2023 whether or not serious self-harm in fact occurs (section 184(5) OSA 2023), and explains the importance of assessing whether the suspect’s intention meets the criminal threshold set by Parliament: that of intended serious self-harm.

The New Guidance notes that it is irrelevant whether the content of the communication or publication is created by an offender. This means that in the online context, the offence under this section of the OSA 2023 may be committed by forwarding another person’s direct message or sharing another person’s post (section 184(7) OSA 2023). Similarly, a communication which consists of or includes a hyperlink to other content is to be read as including reference to that content (section 184(8) OSA 2023).

The New Guidance urges prosecutors to consider the nature of the content viewed and whether it was sent or communicated with the intent that the recipient is encouraged or assisted to do an act that amounts to serious self-harm.

The New Guidance also addresses section 184(9), which provides that where a person sends, gives or makes available an item on which data is stored electronically, the reference to the item in section 184(2)(f) includes content accessed by means of the item to which the recipient is specifically directed by the person sending, giving or making that item available. It gives the example of someone sending another person a memory stick containing material that is intended to encourage or assist them to seriously self-harm, which could amount to committing a criminal offence.

Cyber-flashing

Section 187 OSA 2023 inserted a new section 66A into the Sexual Offences Act 2003 (the SOA 2003) which creates an either-way offence which carries a maximum penalty of up to two years’ imprisonment and/or an unlimited fine.

This offence is committed when an offender intentionally sends or gives a photograph or film of any person’s genitals to another person, and either:

• the offender intends that other person will see the genitals and be caused alarm, distress, or humiliation; or
• the offender sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether the other person is caused alarm, distress, or humiliation.

This act can be made out by sending an image or video to another person by any means, electronically or otherwise; showing it to another person; and, placing it for a particular person to find (per section 66A(2) SOA 2003). This includes a copy of relevant media, and (importantly in the context of the growing threat of AI manipulation including so-called deepfakes) media which has been made or altered by computer graphics, or in any other way, which appears to be a photograph or film (section 66A(5) SOA 2003).

A person convicted of an offence under section 66A SOA 2003 may be subject to notification requirements (i.e. the sexual offenders register), as set out at section 80 SOA 2003, and paragraph 33A in Schedule 3 SOA 2003 (which was inserted by paragraph 16(4) in schedule 14 OSA 2023).

The New Guidance points out that, where the legal elements of an offence under section 66A SOA 2003 are not established, prosecutors may also consider the offences relating to indecent messages under section 127(1)(a) CA 2003 and section 1(1)(a)(i) MCA 1988.

On 19 March 2024, the first conviction was secured relating to this offence. Nicholas Hawkes was jailed for 66 weeks after he sent unsolicited photos of his genitals to a 15-year-old girl and a woman, who reported the incident to the police. He must also comply with a 10-year restraining order and will be subject to a 15-year Sexual Harm Prevention Order. You can read more about this case in a separate blog.

Revenge porn

The either-way offence of disclosing or threatening to disclose private sexual photographs and films with intent to cause distress contrary to sections 33 to 35 of the Criminal Justice and Courts Act 2015 has been repealed (section 191 OSA 2023), although, as noted in the Updated Guidance, the old section 33 offence remains available for offences committed prior to the commencement of Part 10 OSA 2023 on 31 January 2024.

For offences committed on or after the commencement of Part 10 OSA 2023 on 31 January 2024, section 188 OSA 2023 inserts a new section 66B into the SOA 2003, which creates four distinct offences. Section 66B(1) SOA 2003 creates a summary offence, while sections 66B(2) – (4) SOA 2003 are either-way offences which carry a maximum penalty of up to two years’ imprisonment and/or an unlimited fine.

The New Guidance asks prosecutors to note that these new offences are intended to address activities including so-called deep-fake images, and down-blousing.

 

Next steps

The passage of the OSA 2023 has already received considerable attention from many quarters. The New and Updated Guidance from the CPS provides few further clues as to how it will be enforced, although it does indicate that law enforcement authorities are well prepared to take on and prosecute cases under the new law.

The recent successful cyber-flashing prosecution noted above, which involved the police and CPS acting only a few days after the offence was introduced, may further indicate that the OSA 2023 has addressed some important gaps in the previous law, and that law enforcement is willing – and able – to enforce the law. However, it is only when more cases begin to reach the courts, particularly on appeal, that we will be able to glean more useful information as to how the more complicated or unclear aspects of the new legislation will be interpreted.

Further Information

If you would like more information on any of the issues raised in this blog, please contact a member of our criminal litigation team. 

About the Authors 

Nicola Finnerty is a Partner in our Criminal Litigation team and a leading expert in white collar and business crime, proceeds of crime & asset forfeiture. Over the last 25 years she has been involved in many of the most high-profile, complex criminal and regulatory investigations and prosecutions, both in the UK and in matters which span multiple jurisdictions.

Úna Campbell works on a broad range of matters, including criminal defence and police investigations; white collar and financial crime; international crime and extradition; private prosecutions and public inquiries.