UK expands Online Safety Bill to criminalize encouraging self harm

The UK government has said it will further expand the scope of online safety legislation by criminalizing the encouragement of self-harm — in a bid to tackle what it describes as “tragic and avoidable deaths caused by people seeing self-harm content online”.

The latest amendment to the controversial but populist Online Safety Bill will mean in-scope platforms will be required to remove content that deliberately encourages somebody to physically injure themselves — or else risk penalties under the legislation.

Individuals posting such content online could also face prosecution under the new offence of encouraging self harm and the secretary of state for digital said the government wants to target “abhorrent trolls encouraging the young and vulnerable to self-harm”.

The government said the maximum penalties will be set out in due course.

It is already illegal to encourage or assist suicide, online or offline, in the UK so the creation of the new offence is intended to bring self harm content in line with an existing prohibition on communications encouraging suicide.

The Online Safety Bill’s passage through parliament remains on pause following an interruption this summer linked to political turmoil in the governing Conservative Party. But the reshuffled UK government has said it will bring the bill back to parliament next month after making tweaks to the legislation.

Just last week the Ministry of Justice announced some incoming additions to the Online Safety Bill, which are focused on tackling abuse of intimate imagery. However further changes are slated around ‘legal but harmful’ content so the full shape of the legislation remains tbc.

The latest changes — making it illegal to send online communications encouraging self harm — come a few months after the government said it would respond to concerns over the bill’s impact on freedom of expression online, with the (new) secretary of state, Michelle Donelan, saying in September she would be “editing” the bill to reduce concern about its impact on ‘legal but harmful’ speech for adults.

Since then child safety groups, which have been campaigning for years for the government to pass online safety legislation, have raised concerns about the bill being weakened — so the government’s move to make encouraging self harm an offence looks intended to respond to that concern.

Yesterday the BBC reported Donelan saying the latest changes were influenced by the case of Molly Russell: The 14-year-old schoolgirl who took her own life five years ago after viewing thousands of pieces of online content about self-harm and suicide on platforms including Instagram and Pinterest.

An inquest into Russell’s death concluded in September that social media had been a factor in her demise. While, last month, the coroner’s ‘prevention of future deaths’ report recommended a series of measures be taken to regulate and monitor minors’ access to social media content.

The Department for Digital, Culture, Media and Sport said the move to add an offence of encouraging self harm will make illegal “one of the most concerning and pervasive online harms that currently falls below the threshold of criminal behaviour”.

In a statement, Donelan added:

“I am determined that the abhorrent trolls encouraging the young and vulnerable to self-harm are brought to justice.

“So I am strengthening our online safety laws to make sure these vile acts are stamped out and the perpetrators face jail time.

“Social media firms can no longer remain silent bystanders either and they’ll face fines for allowing this abusive and destructive behaviour to continue on their platforms under our laws.”

Other priority illegal offences already listed in the bill include hate crimes; provisions around revenge porn (and sharing deepfake porn without content); harassment and cyberstalking.

Following the coroner’s report into Russell’s death, Donelan said measures for safeguarding children would be beefed up as part of tweaks being made to the bill. So by making encouraging self harm illegal the government will — on paper — remove that particular type of problem content out of the ‘legal but harmful’ bucket, which may make it easier for ministers to reduce the level of regulation applied to this type of speech without being accused of undermining essential child protection provisions.

However, regardless of what the bill says on paper, huge questions remain over how platforms will respond to legal duties being placed on them to regulate all sorts of speech — and whether it will boost safety for web users as claimed.

Meanwhile, major freedom of expression concerns remain over a regime with penalties that scale up to 10% of global annual turnover — and even the risk of jail time for non-cooperative senior execs — with critics worried it will have a chilling effect by setting up platforms as defacto speech police and encouraging them to overblock content to shrink their legal risk of a hefty fine.

Since the controversial speech regulation legislation was published in full last year, kicking off over a year of parliamentary scrutiny, the government’s approach has faced plenty of criticism and concern from inside parliament that the bill falls short of its stated aims and claims, even as mainstream child safety groups and campaigners (and a majority of lawmakers on both sides of the house) continue to press for online safety legislation to be passed.

Outside parliament, rights campaigners, legal and technical experts are among those continuing to warn of a looming mess which they argue will apply the biggest penalties to UK web users faced with access restrictions like age verification pop-ups and and homegrown startups faced with impossibly fuzzy demands and expensive compliance costs, with many also arguing the bill won’t do what’s claimed and protect kids either.

The a tug of war between controversy over the government’s entire approach and loud populist support for child safety claims attached to the bill has not reduced ministers’ claimed commitment to passing the legislation — despite the rebooted UK government expressing some freedom of expression qualms — but it remains to be seen how extensively it will rethink the regulation of ‘legal but harmful’ speech.

The bill is due to return to parliament on Monday December 5.

Another growing controversy attached to the bill relates to the potentially disastrous impact on messaging apps’ use of end-to-end encryption — since another recent government amendment puts a requirement on private messaging apps to be able to detect and remove child sexual exploitation and abuse (CSEA) content in both public and private communications between users which raises questions about how they can do so if they have implemented E2EE on the service — and, therefore, what the legislation will do to the strong security that exists to protect all users?

Last week a legal opinion written by a leading UK barrister, commissioned by the free speech campaign group Index on Censorship, also questioned whether the bill is compatible with the UK’s human rights obligations — warning over the extent of the proposed surveillance of app users’ communications being mandated on the private sector by a government appointed regulatory body and without independent oversight.