The rise of social media networks and other online platforms has brought the serious challenge of being able to keep people safe on the internet. Governments around the world are continuously refining legislation to address this issue. It is in this context that the Online Safety Act became law in October 2023. The Act contains a range of measures intended to improve online safety in the UK, including duties placed on internet platforms about having systems and processes in place to manage harmful content on their sites.

Part 10 of the Act, which deals with ‘communications offences’ came into force on 31 January 2024. This has created various new criminal offences relating to conduct such as revenge porn, cyberflashing and epilepsy-trolling and means criminals face up to five years in prison. The ‘communication offences’ include:

• Sending a message with information the sender knows to be false with the intention of causing non-trivial psychological or physical harm to a likely audience without reasonable excuse.
• Sending a message with a threat of death, serious injury, rape or serious financial loss where the sender intends the recipient to fear that threat will be carried out (or is reckless as to whether the recipient has such fear).
• Sending or showing an electronic communication with flashing images with the intention to cause harm to a person with epilepsy.
• Communicating, publishing or showing material capable (and with the intention) of encouraging or assisting the serious self-harm of another, even if the sender cannot identify the recipients and even if the self-harm does not occur.
• Intentionally sending or giving images of any person’s genitals to another person with the intention to cause the recipient alarm, distress or humiliation, or for the purposes of sexual gratification whilst reckless as to whether the recipient will be caused alarm, distress or humiliation.
• Four offences in relation to intentional sharing or threatening to share intimate images without consent, which do not necessarily require proof that the sender intended to cause alarm, distress or humiliation.

Technology Secretary Michelle Donelan said: “From today, online abusers and trolls will be prosecuted and put behind bars for their cowardly and menacing acts - ensuring the public are protected and can have better peace of mind when online.”

The Crown Prosecution Service (CPS) has also issued new guidance to prosecutors to coincide with the new offences taking effect. Siobhan Blake, from the CPS, said: “The Online Safety Act and our accompanying guidance will give prosecutors powerful tools needed to go further in safeguarding women and girls against predatory online behaviours… and bring to justice those who hide behind computer screens and smartphones to carry out their abusive behaviours.”

While much of the Online Safety Act provisions are intended to hold tech companies and social media platforms to account for the content hosted on their sites, these new offences apply directly to individuals sending threatening or menacing messages. 

It is possible that in time organisations could be deemed vicariously liable if an individual who has been convicted of one or more of these offences can be shown to have at the relevant time have been acting in the course of their employment. All organisations should have regard to their employee and volunteer use of social media and the internet connected with the work they do and maintain appropriate policies and procedures are effective so as to try and ensure no such behaviour occurs and certainly not in the context of work, whether paid or voluntary.