Online Safety Act 2023: what might happen in practice? (Part 3)

**TW/CW: blog talks about legal cases involving intimae image abuse**

Where are we now?

The Online Safety Act 2023 (the Act) was entered into UK law in October 2023. However, some details outlining how the Act is to be applied under UK law remain unpublished. These further clarifications will be set out in forthcoming secondary legislation, supporting and adding to the original Act. Documents covering specific areas of the Act are to be drafted and published by OFCOM over the next 2 years¹ (OFCOM is expected to publish over 50 documents relating to the Act).

The most pertinent of these documents, known as a code of practice, are documents that complement UK laws and regulations to provide detailed practical guidance on how to comply with legal obligations. The major codes of practice for the Online Safety Act 2023 will be put before Parliament for approval following a consultancy period, stakeholders, businesses, charities and members of the public can send thoughts, feedback and criticism regarding the Act, and OFCOMs role in implementing it. Until these documents are approved by parliament and made accessible to the public, the full impact of the Act will be unknown.

• PHASE ONE: Illegal harms is the first key area addressed by OFCOM’s code of practice roll out. Covering child exploitation, online terrorism and hate speech the consultation period closed in March 2024 and the draft version of the code is due to be published in Autumn of the same year. The draft will then be sent for Parliamentary approval in early 2025.
  
  
• PHASE TWO: Child Safety and Pornography, OFCOM published its pornography draft guidance in December 2023, the consultation period has now closed and final guidance is expected to be published towards the end of 2024. Parliamentary approval will be sought in 2025. The consultation period for the child protection code of practice ended in July 2024, the parliamentary approval process will follow in 2024. OFCOM has committed to publishing the draft code of practice covering the protection of women and girls in Spring 2025, which will likely be the latest draft to be approved and made accessible to the UK public.
  
  
• PHASE THREE: Covering transparency reports, user empowerment, fraudulent advertising and other duties. A register of services by category will be available by early 2024, the code of practice will be finalised by the early 2025, transparency notices will be issued to relevant services in mid-2025. The consultation period for this code of practice will conclude on 4th October 2024.²
  

What does this mean?

In a report published on February 21st, 2024, the Public Accounts Committee (PAC) commented on the delayed impact of the Online Safety Act in real terms: ‘[PAC] warns of potential public disappointment with the new regulatory regime, which will not be fully implemented until 2026, if people cannot quickly see improvements to their online experience or understand how complaints are acted on. With Ofcom able only to take action where there are systemic concerns about a service provider, the report recommends it develop a mechanism for letting people know what impact their complaint has had’.³

Legal cases under the Act

Despite the Act’s relative infancy, there have been successful convictions under the new offences brought forward. A perpetrator from Colchester in Essex has been jailed for 34 weeks for sending threatening messages online and repeatedly visiting a woman’s address. This was a landmark case for the Act, being the first to convict a defendant using one of the new offences.⁴

In February 2024, another perpetrator was successfully charged and convicted using the Act for sending a photograph of genitals to a 15-year-old girl. The defendant was sentenced a total of 64 weeks in jail for the offence which took place in Essex. Hannah von Dadelszen, deputy chief prosecutor for the East of England, praised the new Act saying it was a ‘really important tool in a prosecutors toolkit’.⁵

The Act has had a promising start since it’s introduction in early 2024, with further codes of practice expected over the next two years the Act will hopefully grow stronger and more robust – and with it, the protection of woman and girls online.

SPOTLIGHT: Intimate Image Abuse

A civil claim (FGX v Stuart Gaunt ) was brought forward against a defendant accused of intimate image abuse in 2023, just before the Online Safety Act came into force. Almost £100,000 was awarded in damages to the claimant, who suffered psychological distress due to the actions of the perpetrator. The case was judged using the Criminal Justice and Courts Act 2015, which meant that the prosecution had to prove that the defendant shared the images with the intention to cause distress to secure the damages.

This was the first time the High Court awarded damages for image-based abuse; this landmark ruling led to changes in the draft offences in the Online Safety Bill (soon to be the Online Safety Act). The scope of the intimate image offence was widened in response to the defence argued in FGX v Stuart Gaunt, meaning perpetrators can now be prosecuted if the intention for their actions was sexual gratification, humiliation, alarm, or distress. This change should mean that cases brought against perpetrators of intimate image abuse have a higher conviction rate, hopefully acting as a deterrent for would-be defendants.

The phrase ‘intimate image abuse’ was used during this case as a replacement of ‘revenge porn’. Mrs Justice Thornton DBE (the judge in this case) stated that the term “revenge porn,” ‘whilst widely accepted, connotes that the victim may have done something wrong and so adopted the term “image-based abuse” in this case.’⁶ This is a welcome update to the way we use language to describe the actions of perpetrators and experience of survivors, hopefully ‘intimate image abuse’ becomes common parlance outside of legal proceedings.

Toby Howells is a volunteer communications officer with SARSAS. Toby graduated from the University of York’s Law School in 2020, studying public and criminal law and now works for Bristol City Council.

You can read Toby’s part one blog here and part two blog here.

Legal disclaimer: This article contains general legal information; the legal information is not advice or guidance and should not be treated as such. The information on this website is provided without any representations or warranties and is published exclusively to provide opinion and awareness.

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1. Online Safety Act 2023 (legislation.gov.uk) ↩︎
2. Ofcom’s approach to implementing the Online Safety Act – Ofcom ↩︎
3. Preparedness for online safety regulation – Committee of Public Accounts (parliament.uk) ↩︎
4. New communications offences enacted by the Online Safety Act 2023 | Essex Law Research Blog ↩︎
5. Cyber-flashing convict is first to be jailed under new law – BBC News ↩︎
6.  https://www.mishcon.com/news/high-court-awards-substantial-damages-in-first-image-based-abuse-privacy-case ↩︎