Online Safety Bill

Written evidence submitted by the Legal Advice Centre at Queen Mary, University of London and Mishcon de Reya LLP on 30 May 2022 for consideration by the Public Bill Committee on the Online Safety Bill (OSB51)

Executive summary

· Image-based sexual abuse (or "revenge porn") is a growing phenomenon in our society which causes significant harm and suffering, particularly to children and young adults.

· The Online Safety Bill (the "Bill") provides substantial new protections to victims of image-based sexual abuse. It is critical that these are not watered down.

· There are further amendments that can be made to the Bill which will provide additional protection to these victims without creating unnecessary burdens on business or having a negative effect on free speech.

Introduction

In 2015, Queen Mary Legal Advice Centre "(QMLAC") set up the SPITE (Sharing and Publishing Images To Embarrass) project to provide free legal advice to victims of image-based sexual abuse.

Image-based sexual abuse is a scourge on our society. It destroys lives, leading victims to become estranged from friends and families, lose their job, have serious mental health difficulties, and worse. Once an image has been published online, there is often very little a victim can do to remedy the situation; they have to live their lives with the knowledge that the image is publicly available and potentially discoverable by anyone (and may have been distributed to friends and family). Until now, the legal and regulatory regime has not provided adequate protection for these victims.

QMLAC has partnered with law firm Mishcon de Reya LLP since the inception of the SPITE project. In February, we published a joint paper which reviewed the Draft Online Safety Bill from the perspective of victims of image-based sexual abuse and made some recommendations as to how it could better protect these victims.

We were pleased to see that many of our recommendations were adopted in the final draft of the Online Safety Bill. In April 2022, we published a follow up paper responding to the new draft, in which we concluded that "while there is room for improvement, we consider that the most recent amendments represent a significant step forwards for victims of [image-based sexual abuse]".

To support our submissions, we have undertaken analysis of SPITE victims assisted by our service during the first seven years of the SPITE project (2015 to 2021 inclusive), and included the relevant data below. The data from 2021 to date is currently in progress, and therefore not yet available.

The purpose of these submissions is twofold: (1) to strongly recommend that those protections already included in the Bill are not watered down; and (2) to propose some minor amendments (i.e. not all of the amendments we have suggested in our previous papers), which we believe should be uncontroversial and which would make a material difference to victims of image-based sexual abuse.

Submissions

Illegal content

1. The term "illegal content" now specifically includes offences relating to image-based sexual abuse, most importantly content which amounts to an offence: (i) under the section 63 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images); and (ii) under section 33 of the Criminal Justice and Courts Act 2015 (disclosing, or threatening to disclose, private sexual photographs and films with intent to cause distress). The inclusion of this in the Bill is an important step forward in protecting victims of image-based sexual abuse. However, the addition of the new offence of 'up-skirting' (e.g. placing equipment such as a camera or mobile phone beneath a person’s clothing to take a voyeuristic photograph without their permission) under section 67A of the Sexual Offences Act 2003 would bolster the definition of "illegal content", and further protect victims of image-based sexual abuse.

2. Offences relating to public order, harassment, stalking and fear or provocation of violence are also now specifically included in the definition of "illegal content" in Schedule 7 of the Bill. This represents progress in the recognition of violence against women and girls, although we think that explicit reference should be made to such harm – we say this recognising that not all victims of image-based sexual abuse identify as female (81% of SPITE victims assisted by our service identified as female).

Pornography

3. In a significant proportion of cases of image-based sexual abuse, images of the victim are uploaded onto pornographic websites, or this is threatened. 22% of SPITE victims assisted by our service had images uploaded onto pornographic websites. It is crucial therefore that these sites are properly regulated.

4. Section 66 of the Bill introduces various new definitions relating to sites that host pornographic content. Sections 67 – 69 impose new duties on providers that fall under the scope of these definitions and ultimately will require a higher level of scrutiny by Ofcom on such providers. This is very welcome.

5. Section 81 of the Bill sets out Ofcom's duty to establish a register of particular categories of regulated services (the "tier system") for the purpose of determining the threshold conditions which will apply to each category. The tier system for regulated services continues to be based on the number of users and functionalities of the service provider. All services in Category 1 will be subject to a higher level of regulation.

6. The Bill should be updated to ensure that service providers on which image-based sexual abuse content is shared will fall under Category 1 regardless of their size. This should be achieved by introducing a rebuttable presumption that websites that host user-generated pornographic content are Category 1 services.

Online anonymity

7. The revised Bill addresses issues of online anonymity, which is a major concern for victims of image-based sexual abuse. 46% of SPITE victims assisted by our service raised issues of anonymity for both pornographic website uploads and social media uploads. Online anonymity often makes it very difficult to prove who is behind image-based sexual abuse (even if the victim knows that there is only one person it can be).

8. Category 1 providers will be required to offer ways for users to verify their identities and control who can interact with them, including the ability to block anonymous trolls and other users who have not verified their identity. This does not solve all of the difficulties that are caused to victims by online anonymity; however it is progress.

9. As this only applies to Category 1 providers, this is another reason that there should be a rebuttable presumption that all websites that host user-generated pornographic content are Category 1 services.

Super-complaints

10. Super-complaints enable eligible entities to make complaints to Ofcom regarding the conduct of a regulated service, if such conduct presents a material risk of harm. However, the Bill is yet to provide further guidance under section 140 on which entities are eligible to make a super-complaint to Ofcom.

11. A suitable entity (or more than one) needs to be appointed to represent the interests of victims of image-based sexual abuse.

Collecting information

12. The Bill should require Ofcom to collect information specifically linked to image-based sexual abuse. Wording to this effect could be included in section 132 (research about users' experiences of regulated services).

Media literacy

13. Regrettably, the duty to promote media literacy has been removed as a specific provision under the Bill. Instead, Ofcom's duty to promote media literacy is referred to only within the context of its existing duty under section 11 of the Communications Act 2003. This is an unfortunate step backwards with respect to prevention of image-based sexual abuse.

14. The duty to promote media literacy, formerly under section 103 of the Bill, should be reinstated and expanded to outline the specific goals it aims to achieve (which should include preventing image-based sexual abuse).

15. Ofcom should be required to work with schools to promote media literacy from an early age, with specific reference to image-based sexual abuse once children have reached an appropriate age (e.g. by way of initiatives such as SPITE for Schools). This reflects and supports the Statutory Guidance for Relationships and Sex Education in Secondary Schools.

New communications offences

16. Part 10 of the Bill contains four new communications offences, relating to harmful communications, false communications, threatening communications and "cyber flashing". These replace the offences in section 127 of the Communications Act 2003 and the Malicious Communications Act 1988, as recommended by the Law Commission. This should significantly increase protection of SPITE victims and is very welcome.

17. Our experience is that many image-based sexual abuse crimes do not currently lead to prosecutions. It is important that the police and the Crown Prosecution Service are given sufficient resources and training so that they can properly investigate and prosecute these crimes.

18. A specific unit should be set up within the Metropolitan Police that is dedicated to investigating and prosecuting image-based sexual abuse crimes.

Recommendations

1. The significant protections for victims of image-based sexual abuse that are currently in the Bill should remain.

2. Schedule 7 of the Bill should be amended to include specific reference to violence against women and girls as well as the 'up-skirting' offence in section 67A of the Sexual Offences Act 2003.

3. There should be a rebuttable presumption that websites that host user-generated pornographic content are Category 1 services.

4. One or more organisations should be appointed to make super-complaints on behalf of victims of image-based sexual abuse.

5. Ofcom should be required to collect information specifically linked to image-based sexual abuse.

6. The duty to promote media literacy, formerly under section 103 of the Bill, should be reinstated and expanded to outline the specific goals it seeks to achieve (including the prevention of image-based sexual abuse).

7. Ofcom should be required to work with schools to promote media literacy from an early age, with specific reference to image-based sexual abuse once children have reached an appropriate age.

8. A specific unit should be set up within the Metropolitan Police that is dedicated to investigating and prosecuting crimes relating to image-based sexual abuse.

Queen Mary Legal Advice Centre

Mishcon de Reya LLP

May 2022