This is Part 2 of a short series of reflections on Ofcom’s Illegal Harms Consultation under the Online Safety Act 2023 (OSA). Ofcom are currently in the process of considering submissions following closure of the consultation in February 2o24.
The very title of the Ofcom consultation — Illegal
Harms — prompts questions about the illegality duties. Are they about illegal
content? Are they about harm? Is all illegal content necessarily harmful? What
does the Act mean by harm?
What is meant by harm?
The answer to the last question ought to be simple.
For the purpose of the safety duties harm means “physical or psychological
harm”. For the remaining questions, the devil resides in the tangled
undergrowth of the Act (discussed in Part 3, analysing and categorising the Act’s Illegal Content duties).
However, the Act’s specific meaning of harm is often
glossed over. Ofcom’s Quick Guide to illegal content risk assessments mentions ‘harm’ or ‘illegal harm’ 16 times
without pointing out that for the purpose of the safety duties harm has a defined
meaning. Considering how many of the illegal content risk assessment duties are
framed by reference to harm (see table in Part 3), it is striking that neither the
consultation section explaining Ofcom’s approach to the risk assessment duty
(Volume 3), nor the draft Illegality Risk Assessment Guidance itself (Annex 5),
mentions the Act’s specific meaning of harm.
The four page consultation Overview is
similarly lacking, while mentioning ‘harm’ or ‘illegal harm’ 16 times. Neither is the definition mentioned in Ofcom’s 39 page summary of each chapter
of the consultation, nor in the consultation’s 38 page Volume 1 Background to
the Online Safety regime.
At the start of Volume 2 of the
consultation (the Ofcom Register of Risks for illegal content) we do find:
“The Online Safety Act (the Act)
requires Ofcom to carry out sector-wide risk assessments to identify and assess
the risk of physical and psychological harm to individuals in the UK presented
by regulated user-to-user (U2U) and search services, and to identify
characteristics relevant to such risks of harm.” [para 5.1]
The footnote to that paragraph says:
“‘Risks of harm’ refers to the
harm to individuals presented by (a) content on U2U or search services that may
amount to the offences listed in the Act, and (b) the use of U2U services for
the commission and/or facilitation of these offences (collectively, the ‘risks
of harm’). ‘Harm’ means physical or psychological harm; we discuss physical or
psychological harm as part of our assessment of the risks of harm.”
The Register of Risks section then continues to emphasise the Act’s specific meaning of harm. Of the four separate glossaries and lists of
definitions contained in the consultation papers, only the Register of Risks
Glossary includes the Act’s definition of harm.
A footnote to a paragraph in the Register of Risks section which references an Ofcom survey acknowledges
the risk of overreach in unbounded references to harm:
“63% of internet users 13 years
old and over had seen or experienced something potentially harmful in the past
four weeks.[Note: these may capture a broad range of potentially harmful
experiences that go beyond illegal harms] Source: Ofcom, 2022. Online Experiences
Tracker. [accessed 10 September 2023].” [footnote 22, para 6.1]
To give an example, the survey in question
prompted respondents that potential harm included “Generally offensive or ‘bad’ language, e.g. swearing, rudeness”.
The OSA’s illegality duties have not generally embraced
the broader and vaguer concepts of societal harm that
were discussed at the time of the Online Harms White Paper. Nevertheless, the Ofcom consultation is not immune from straying into the territory of societal harm:
“In most cases the harms we have
looked at primarily affect the individual experiencing them. However, in some
cases they have a wider impact on society as a whole. For instance,
state-sponsored disinformation campaigns can erode trust in the democratic process.
All this underlines the need for the new legislation and shows that, while many
services have made significant investments in tackling online harm in recent
years, these have not yet been sufficient.” [Boxout, Volume 2, p.8]
A state-sponsored disinformation campaign
could be relevant to this consultation only if it constitutes an offence within
the purview of the Act (e.g. the new Foreign Interference offence). Even then, only a risk of physical or psychological harm to an individual could be relevant to determining what kinds of illegality safety duty might be triggered: content-based, non-content-based or harm-based (as to which, see the discussion in Part 3 of the different categories of duty created by the Act). For the purpose of the Act’s illegality safety duties the “wider impact on society as a whole” is not a relevant kind of harm.
Returning to the consultation title, the
term ‘Illegal Harm’ does not appear in the Act. The consultation Glossary essays
a definition:
“Harms arising from illegal
content and the commission and facilitation of priority offences”.
Volume 1, which describes the illegal
content duties, contains a slightly fuller version:
“‘illegal harm’ – this refers to
all harm arising from the relevant offences set out in the Act, including harm
arising from the presence of illegal content online and (where relevant) the
use of online services to commit or facilitate priority offences. …” [Volume 1,
para 1.23]
‘Harm’, as already mentioned, is defined in the Act as physical or psychological harm.
If that definition of Illegal Harm is meant to describe the overall subject-matter of the illegality duties
it is incomplete, since in its terms it can apply only to those
illegality duties that are framed by reference to harm.
In any event the consultation does not use
the phrase ‘Illegal Harms’ consistently with that definition. It sometimes reads as a catch-all for the illegality duties generally. Often it refers to the underlying
offences themselves rather than the harm arising from them. Thus on the second
page of the Consultation at a Glance: “The 15 different kinds of illegal harms
set out in Ofcom’s draft risk assessment guidance are: Terrorism offences…”.
In places it is difficult to be sure in what sense the term ‘illegal harm’ is being used, or it changes from one paragraph to the next. An example is in the Risk Assessment
Guidance:
“A5.23 You must assess the risk of
each kind of illegal harm occurring on your service. U2U services need to
consider the risk of:
Illegal
content appearing on the service – for example, content inviting support
for a proscribed organisation (e.g. a terrorist group);
An offence
being committed using the service – for example, a messaging service being used
to commit grooming offences, in a situation where adults can use the service to
identify and contact children they do not know; and
An offence
being facilitated by use of the service – for example, the use of an ability to
comment on content to enable harassment.
A5.24 You must assess the
likelihood of these illegal harms taking place, and the potential impact (i.e.
the nature and severity of harm to individuals).
A5.25 As long as you are covering
all of the risks of harm to individuals, you can assess these three aspects
together when you assess each kind of illegal harm.”
In para A5.23 ‘illegal harm’ is being used to
describe three different varieties of risk assessment duty: Sections 9(5)(b),(c) and
(e). None of those is framed in the Act by reference to harm. Nor does the Glossary
definition of illegal harm fit the usage in this paragraph.
Paras A5.24 and A5.25 then
refer to harm to individuals. That reflects a duty which is framed by reference
to harm (Section 9(5)(g)). It is a duty to which the defined meaning of physical or
psychological harm applies.
Relatedly, shortly afterwards the Guidance
says:
“In the risk assessment, the key
objective is for you to consider in a broad way how your service may be used in
a way that leads to harm.” (Box-out following A5.41)
It does not mention the Act’s
definition of harm (assuming, as presumably it must do, that that is what the Guidance means by harm
in this context).
Shorthand is probably unavoidable in the challenging task of rendering the consultation and the OSA understandable. But when it comes to describing a key aspect of the safety duties, shorthand can result in confusion rather than clarity. The term ‘illegal harm’ is especially difficult, and might have been best avoided. Given its specific meaning in the Act, rigorous and clear use of the term ‘harm’ is called for.
