Explainer: Is spreading misinformation punishable under the Online Safety Act?

Keir Starmer has pledged to review the Online Safety Act after the riots, but what are its current rules around online misinformation? Lawyers Hanna Basha and Mark Jones explain

Since riots erupted throughout the country, Sir Keir Starmer has pledged to bring to justice both those involved in the rioting and “those whipping up this action online, and then running away themselves”. 

Misinformation circulating on social media about the religion and immigration status of the murderer of three young children in Southport appears to be at the heart of the far-right protests, but are those publishing misinformation at risk of civil or criminal action? 

Information speculating about an individual’s religion, ethnicity and immigration status is private to that person and if false, may also be defamatory. Under data processing laws, religion and ethnicity are ‘special category data’ meaning that they deserve more protection. Therefore those posting information on social media could face civil claims, whether or not the information posted is true. There are defences which need to be considered and depend on the circumstances in each case, but those posting information online could be subject to injunctions and orders to pay damages and legal costs. 

As to criminal offences, the Online Safety Act 2023 might seem the natural place to look for offences to cover such behaviour. This Act could have been a pivotal moment in the way the courts tackle the harms caused by misinformation. However, the only references to misinformation in the Act are about setting up a committee to advise Ofcom and changes to Ofcom’s media literacy policy. There is a new false communications offence in the Act which outlaws the intentional sending of false information that could cause ‘non-trivial psychological’ or physical harm to users online but this is predominantly aimed at internet trolls and not the events of the past week. 

Duties on social media platforms under the Act to remove harmful content are not set to come into force until 2025 or 2026. However, Ofcom, the media regulator, has written to social media companies inviting them to take action now. Ofcom could have been better prepared for the implementation of the Online Safety Act and the government could have made the spreading of misinformation a criminal offence under the Act. These are missed opportunities and the delays can lead to uncertainty and an inability to tackle social media posts head on. Weighing into the debate, Sadiq Khan has recently described the Act as being “not fit for purpose” to combat misinformation online.  

Notwithstanding the weaknesses in the Online Safety Act, a woman has been arrested over false information posted on social media. Separately, a man has been arrested on suspicion of encouraging or assisting criminality via online posts. However these are pre-existing criminal offences and have not been bolstered by the Online Safety Act 2023. 

Charges, if any, will be under the Public Order Act 1986. This is the main piece of legislation which penalises the use of violence and intimidation by individuals or groups as well as racial or religious hatred. Online posts, inciting or encouraging behaviour, may well be offences under this Act, but there will be arguments as to whether speculation about a suspect’s religion or immigration status without an incitement to commit violence is an offence under the Act. The extent to which misinformation can be prosecuted will be seen in the weeks ahead.

Recent events are a stark reminder of the dangers and consequences of posting information online. As well as potential civil claims, those posting can face criminal liability. The risks will only increase as the Online Safety Act is given more teeth and more powers in the years to come.  

Hanna Basha and Mark Jones are partners at Payne Hicks Beach