The Online Safety Act 2023 – Communication Offences

Written 31st January 2024 by Martha Odysseos

Part 10 of the Online Safety Act 2023 comes into force on the 31 st of January 2024. 

The Act creates the following new communication offences:

The Act also creates the following offences which are to be inserted into the Sexual Offences Act 2003:

  • Sending etc photograph or film of genitals 
  • Sharing or threatening to share intimate photograph or film 

Below is a short breakdown of each offence.

Section 179: False communications offence

This section makes it an offence for a person, without a reasonable excuse, to send a message which conveys information that the person, at the time of sending, knows to be false and intending the message or the information in it to cause non-trivial psychological or physical harm for someone who could reasonably be foreseen to encounter the message. This could be whether it was sent directly to them or forwarded/shared with them.

Penalties: The penalties for someone who is found guilty of this offence range from a fine up to a term of imprisonment of 51 weeks.

Exceptions: There are a number of exceptions to section 179. For example, an offence under section 179 cannot be committed by a news publisher or the holder of a licence under the Broadcasting Act 1990 or 1996 in connection with anything done under the authority of the licence.

Section 181: Threatening communications offence 

This section creates a criminal offence for a person to send a message which conveys a threat of death or serious harm if at the time of sending they intended an individual who would encounter the message to fear that the threat would be carried out or if they were reckless as to whether the individual encountering the message would fear that the threat would be carried out (whether or not by the person sending the message).

Serious harm encompasses serious injury (such as grievous bodily harm), rape, assault by penetration or serious financial loss.

It does not matter whether the content of a message was created by the person who sent it. Therefore, if a person forwards another person’s message or shares another person’s post they can still by guilty of this offence.

Penalties: If a person is convicted of this offence, they could face a penalty of a fine ranging to 5 years imprisonment.

]Defence: If the offence alleged is in relation to serious financial loss, it is a defence for a person to show that the threat was used to reinforce a reasonable demand and the person reasonably believed that the use of the threat was a proper means of reinforcing the demand.

Section 183 Offences of sending or showing flashing images electronically  

This section creates two offences of showing or sending flashing images electronically. This is aimed at people who, without a reasonable excuse, send/show flashing images to people with epilepsy purposefully to cause harm. Harm means a seizure, alarm or distress.

Penalty: Section 183 is an either way offence which means it can be tried in the Magistrates Court or the Crown Court. The maximum sentence in the Crown Court is a term of imprisonment not exceeding five years.

Section 184 Offence of encouraging or assisting serious self-harm 

Section 184 creates an offence if a person does a relevant act capable of encouraging or assisting the serious self-harm of another person, and they intended to encourage or assist the serious self-harm of another person.

Self-harm is harm which amounts to grievous bodily harm.

A relevant act includes if a person:

  • Communicates in person ]
  • Sends, transmits or publishes a communication by electronic means
  • Shows a person such a communication
  • Publishes material by any means other than electronic means
  • Sends, gives, shows or makes available to a person

Penalty – If a person is convicted of this offence, the penalty ranges from a fine to a term of imprisonment not exceeding 5 years.

Section 186: Liability of corporate officers 

This section establishes that an officer, i.e. a director, manager, associate, secretary or similar officer, of a body corporate can be held criminally liable when the body corporate commits an offence under sections 179, 181, 183 or 184. 

Section 187 – Sending etc photograph or film of genitals 

This section inserts a new section 66A into the Sexual Offences Act 2003. This makes it an offence for a person to intentionally send or give a photograph or film of any person’s genitals to another person if they intend that the other person will see the genitals and be caused alarm, distress or humiliation or if they send the photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether the other person will be caused alarm, distress or humiliation.

Penalty – If convicted a person is liable to a term of imprisonment not exceeding two years.

Section 188 – sharing or threatening to share intimate photograph or film 

This section inserts a new section 66B into the Sexual Offences Act 2003 which creates a number of new offences.

Subsection 1 

This subsection makes it an offence for a person to intentionally share a photograph or film which shows, or appears to show, another person in an intimate state where that person does not consent to the sharing of the photograph or film and the person does not reasonably believe that they consent.

Subsection 2 

A further offence is created that means a person commits an offence if they intentionally share a photograph or film which shows, or appears to show another person in an intimate state with the intention of causing them alarm distress or humiliation and they do not consent to the sharing of the photograph or film.

Subsection 3 

A third offence is created by this section if a person (A) intentionally shares a photograph or film which shows or appears to show another person (B) in an intimate state, and they (A) do so for the purpose of themselves (A) or another person obtaining sexual gratification where B does not consent to the sharing of the photograph or film and A does not reasonably believe that B consents.

Subsection 4 

Finally, this section creates an offence where a person threatens to share a photograph or film which shows, or appears to show another person in an intimate state and they do so with the intention, or being reckless as to whether, that that person or another person who knows that person will fear that that threat will be carried out.

Martha Odysseos

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Manchester

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