Online Safety Bill to include Law Commission recommendation targeting the encouragement of serious self-harm

Last week the Government announced that it will update the Online Safety Bill to include the Law Commission’s recommendation to make encouraging or assisting serious self-harm an offence.

The recommendation was made in July 2021 as part of the Law Commission’s Modernising Communications Offences report. The project was funded by the Department for Digital, Culture, Media and Sport (DCMS) under the Government’s Online Harms Strategy.

In its report, the Law Commission recommended the following new or reformed criminal offences to protect victims of online abuse and safeguard freedom of expression:

• a new “harm-based” communications offence to replace the offences within section 127(1) of the Communications Act 2003 (“CA 2003”) and the Malicious Communications Act 1988 (“MCA 1988”);
• a new offence of encouraging or assisting serious self-harm;
• a new offence of cyberflashing; and
• new offences of sending knowingly false communications, threatening communications, and making hoax calls to the emergency services, to replace aspects of the MCA 1988 and section 127(2) of the CA 2003.

The Law Commission also recommended that intentionally sending flashing images to a person with epilepsy (with the intention of inducing a seizure) should be a criminal offence.

In its interim response to the report, the Government announced it would implement the Commission’s recommendations for the harm-based communications offence, the knowingly false communications offence, and the threatening communications offence as part of the Online Safety Bill.

In addition to those offences, the Commission’s recommended cyberflashing offence was also included in the Bill, and the Government has recently tabled an amendment to the Bill to include the Commission’s recommended offence of sending flashing images with intent to cause harm.

The Government has now also announced it will implement another Law Commission recommendation, by proposing an amendment to the Bill criminalising the encouragement of serious self-harm.

The Law Commission’s recommended offence would target intentional encouragement or assistance of self-harm at a high threshold, equivalent to grievous bodily harm. This is designed to combat malicious behaviour deliberately encouraging vulnerable people to harm themselves.

Commenting on the recommendation targeting the encouragement of serious self-harm, Professor Penney Lewis, Commissioner for Criminal Law at the Law Commission, said:

“In our Modernising Communications Offences report, we aimed to update the law to address online and offline communications in a proportionate and efficient way. We are pleased that the Government will implement our recommended offence targeting the encouragement of serious self-harm.

“Our recommendation to set a high threshold of harm would ensure that the offence targets the most serious encouragement or assistance of self-harm without unduly criminalising vulnerable people”.

The Online Safety Bill, which can be found here, is due to return to Parliament for a third reading in early December.

Further information on the Modernising Communications Offences project can be found here.