‘Why the Online Safety Act Won’t Stop Type of Misinformation that Sparked Riots – Yurika.R

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, such as fear and anxiety.”

It’s instructive to compare this with the EU’s Digital Service Act 2022, which states that “manipulative techniques can negatively impact entire groups and amplify societal harms, for example by contributing to disinformation campaigns or by discriminating against certain groups” and singles out as areas for consideration “the possible negative impacts of systemic risks on society and democracy, such as disinformation or manipulative and abusive activities”.

What all this suggests is that if the Government is serious about trying to curb the kinds of mis- and disinformation that helped fuel the riots, then it needs to look beyond the OSA and create legislation outlawing such content which can then be added to the list of “priority offences” contained in Schedule 7 of the Act.   

However, should any Government try to do so it will run smack into the absolute determination of powerful sections of the mainstream press to keep off the statute book any measure which they believe could be used against the kinds of journalism in which they specialise.

Even before their concerted attack on the proposal in the 2019 Online Harms White Paper to outlaw “disinformation” and “false or misleading information”, the News Media Association (NMA) had gone on the warpath.

In 2017, while giving evidence to the DCMS select committee inquiry into Disinformation and ‘Fake News’, the NMA took the opportunity to launch a blistering and highly personalised attack on those who questioned the truthfulness of the journalism that featured in some of its members’ papers. 

Singling out Stop Funding Hate, Hacked Off and IMPRESS, as well as named individuals working with them, the NMA roared that the term “fake news” is being “used to attack real news, typically with the aim of bullying the press, silencing dissent and shutting down debate”.

This was being done by people “who long for the day when three national newspapers are forced to close their doors”. The NMA warned that “while we certainly take seriously the fake news phenomenon, branding real news as ‘fake news’ is, right now, the more acute threat to democracy”. 

Without a scintilla of doubt, this is the reaction that will greet the present government should it attempt to legislate against mis- and disinformation in any way that impinges upon what passes for journalism in papers such as the Telegraph, Mail, Sun and Express, whether on- or offline. 

Meanwhile, Ofcom’s complete unwillingness or inability to enforce its own Broadcasting Code in the case of GB News makes one wonder how on earth they’re going to enforce the Online Safety Act when faced with the fully lawyered might and fabulous wealth of the tech titans of Silicon Valley.