As part of a broader campaign targeting knife
crime the Home Office has published its consultation response on a new
procedure for authorised police officers to issue takedown notices to online platforms (also
now to include search engines). These would require 48-hour removal of
specified illegal weapons content items, on pain of civil penalty sanctions.
The government has also tabled implementing amendments to the
Criminal Law and Policing Bill. These merit close attention. A takedown regime
of this kind inevitably faces some similar issues to those that confronted the Online
Safety Act, particularly in how to go about distinguishing illegal from legal
content online. The Online Safety Act eventually included some fairly tortuous provisions that attempt (whether successfully or not) to meet those challenges.
In contrast, the Policing Bill amendments maintain a judicious silence on some
of the thorniest issues.
Parenthetically, as a policy matter the idea of a system for
giving authoritative illegal content removal notices to platforms is not necessarily
a bad one — so long as the decision to issue a notice is independent and accompanied
by robust prior due process safeguards. Previously,
back in 2019, I suggested a system of specialist independent tribunals that could
be empowered to issue such notices to platforms, as (along with other measures)
a preferable alternative to a ‘regulation by discretionary regulator’ scheme. That idea went nowhere.
But back to the Bill amendments. The most critical aspects
of an official content removal notice regime are how illegality is to be
determined, independence of the notice-giver, prior due process and safeguards.
How do the government’s proposals measure up?
What is unlawful weapons content?
As the Online Safety Act has reminded us, the notion of
illegal content is not as simple a concept as might be thought; nor is making
determinations of illegality.
First off, there is the conceptual problem. Online content as
such cannot be illegal: persons, not content, commit offences. It is only
what someone does with, or by means of, content that can be illegal.
Of course, in everyday parlance we say that zombie knives
are illegal, or that extreme pornography is illegal, and we know what we mean. Statutory
drafting has to be more rigorous: it has to reflect the fact that the offence is
constituted by what is done with the item or the content, with what intent, and
subject to any available defences. It is legally incoherent to say that content
constitutes an offence, without seeking to bridge that gap.
The Online Safety Act attempted to grapple with the conceptual
difficulty of equating content with an offence. The Policing Bill amendments do
not.
For England and Wales new clause NC79 in the Bill amendments asserts that content
is “unlawful weapons content” if it is:
“content that constitutes… an offence under section 1(1) of the
Restriction of Offensive Weapons Act 1959 (offering to sell, hire, loan or give
away etc a dangerous weapon)”
NC79 provides the same for offences under section 1 or 2 of
the Knives Act 1997 (marketing of knives as suitable for combat etc and related
publications), and under section 141(1) of the Criminal Justice Act 1988
(offering to sell, hire, loan or give away etc an offensive weapon).
That is all. The Online Safety Act (Section 59(2)) does kick
off in a similar way, by stipulating that:
“ “Illegal content” means content
that amounts to a relevant offence.”
But (unlike the Policing Bill amendments) section 59(3) goes
on to try to bridge the gap between content and conduct:
“Content consisting of certain
words, images, speech or sounds amounts to a relevant offence if—
(a) the use of the words, images,
speech or sounds amounts to a relevant offence,
(b) the possession, viewing or
accessing of the content constitutes a relevant offence, or
(c) the publication or
dissemination of the content constitutes a relevant offence.”
The Bill amendments contain no equivalent clause.
Determining illegality
Even if the conceptual gap were to be bridged by a similar
amendment clause, that does not mean that illegality is necessarily obvious
just by looking at the online content. Each offence has its own conduct
elements, mental element and any defences that the legislation may stipulate.
Ofcom’s Illegal Content Judgements Guidance under the Online Safety Act devotes
three pages to section 1(1) of the Restriction of Offensive Weapons Act 1959
alone.
Two issues arise with determining illegality: what
information does the authorised police officer need to have in order to be able
to make a determination? How sure does the officer have to be that an offence
has been committed?
The Online Safety Act, recognising that illegality may have
to be considered in a broader context than the online content alone, stipulates
that a service provider’s determination of illegality has to be made in the
light of all relevant information that is reasonably available to the service
provider.
That has some parallels with the duties of investigating
police officers under the Criminal Procedure and Investigations Act 1996: that
all reasonable steps are taken for the purposes of the investigation and, in
particular, that all reasonable lines of inquiry are pursued.
The 1996 Act duty applies to a police investigation conducted
with a view to ascertaining whether a person should be charged with an offence,
or whether a person charged with an offence is guilty of it. However, ascertaining
whether an offence has been committed for the purpose of a content removal
notice is not the same as doing so with a view to making a charging decision.
In order to issue a content removal notice the officer would not need to identify
who had committed the offence – only determine that someone had done so.
Assuming, therefore, that the 1996 Act duty would not apply
if a police officer were considering only whether to issue a content removal
notice, how far would the police have to go in gathering relevant information
before deciding whether an offence had been committed?
There will of course be cases, perhaps even most cases, in
which the illegality may be obvious – for instance from the kind of knife
involved and what has been said online – and the possibility of a defence
remote. But it will not necessarily always be simple, or even possible, to make
an illegality determination simply by looking at the online content alone.
The Online Safety Act (and Ofcom’s guidance on making
illegality judgements) attempts to indicate what information the service
provider should consider in making judgements about illegality. The Bill
amendments are silent on this.
Indeed, the Ofcom Online Safety Act guidance (which regards
law enforcement as a potential ‘trusted flagger’ for this kind of offence)
anticipates that the flagger may provide contextual information: “Reasonably
available information for providers of user-to-user and search services” is:
• The content suspected to be
illegal content.
• Supporting information provided
by any complainant, including that which is provided by any person the provider
considers to be a trusted flagger.
The silence of the Bill amendments on this topic is all the
more eloquent when we consider that nowhere in the procedures – from content
removal notice through to appeal against a civil penalty notice – is there any
provision for the person whose content is to be removed to be notified or given
the opportunity to make representations.
Comparison with the Online Safety Act
The government emphasises, in its Consultation Response para
6.7, that:
“The proposed measure sits
alongside, and does not conflict with, the structures established through the
Online Safety Act 2023.”
Strictly speaking that is right: a notice from a police
officer under the Bill amendments could have three separate functions or
effects: