The Online Safety Act and Defamation: What Has Changed?

The Online Safety Act 2023 is the most significant piece of UK legislation affecting online content in a generation. While not a defamation statute, it has profound implications for how defamatory content is handled online, the responsibilities of platforms, and the criminal law landscape surrounding harmful communications.

What Is the Online Safety Act?

The Online Safety Act 2023 imposes duties on online platforms (called "regulated services") to protect users from harmful content. It creates a regulatory framework overseen by Ofcom, with the power to impose fines of up to £18 million or 10% of global turnover.

The Act applies to user-to-user services (social media, forums, messaging platforms) and search services that have links to the UK — whether through UK users, UK-targeted content, or UK commercial operations.

New Criminal Offences

The Act creates several new criminal offences directly relevant to defamation and reputation:

False Communications (Section 179)

It is now a criminal offence to send a message containing information the sender knows to be false, where the sender intends to cause non-trivial psychological or physical harm to a likely audience member. Maximum sentence: 51 weeks' imprisonment.

This offence directly targets deliberately false statements — the core of defamation — but adds a criminal dimension. A knowingly false defamatory post on social media could now be both a civil wrong (defamation) and a criminal offence.

Threatening Communications (Section 181)

Sending a communication conveying a threat of serious harm (death, serious injury, serious financial loss) is an offence carrying up to five years' imprisonment if the sender intended the recipient to fear the threat would be carried out.

Harmful Communications (Section 183)

Sending communications (including flashing images to epilepsy sufferers) intended to cause physical harm is specifically criminalised.

Platform Duties Relevant to Defamation

The Act imposes new duties on platforms that affect how defamatory content is handled:

Illegal Content Duty

Platforms must take proactive measures to prevent users from encountering "priority illegal content," which includes content that constitutes a criminal offence. Since defamation involving malicious communications or the new false communications offence is criminal, platforms must take steps to identify and remove such content.

Complaints and Reporting

Platforms must provide accessible and effective complaint mechanisms. Users must be able to report content they believe is illegal, and platforms must respond promptly. This strengthens the existing mechanisms for reporting defamatory content.

Transparency

Platforms must publish transparency reports detailing how they handle complaints, the volume of content removed, and their approach to different categories of harmful content. This increases accountability.

Impact on Defamation Claims

The Online Safety Act affects defamation practice in several ways:

• Stronger platform cooperation: Platforms now have regulatory incentives to respond to complaints about defamatory content, making content removal more achievable
• Criminal-civil strategy: The new false communications offence allows victims to pursue both criminal prosecution and civil defamation claims simultaneously
• Platform liability: While the Act doesn't directly create civil liability for platforms, failure to comply with duties could be used to argue that a platform has lost its intermediary protection
• Identification of defamers: Platforms that are required to verify user identities (for certain types of content) may make it easier to identify anonymous defamers

Ofcom's Role

Ofcom is the regulator responsible for enforcing the Online Safety Act. Its powers include:

• Issuing codes of practice for platforms
• Conducting investigations into platform compliance
• Imposing financial penalties for non-compliance
• Requiring platforms to use specific technologies to detect illegal content

While Ofcom does not handle individual defamation complaints, its regulatory framework creates systemic incentives for platforms to take defamatory content seriously.

What This Means for You

If you are dealing with defamatory content online:

• Report to the platform: Platforms now have stronger obligations to respond to complaints about illegal content
• Consider criminal reporting: If the defamatory content was published knowingly and falsely, it may constitute the new false communications offence
• Use the regulatory framework: If a platform fails to act on your report, you may be able to escalate through Ofcom's complaint mechanisms
• Pursue civil remedies: The Online Safety Act supplements, but does not replace, civil defamation law. Damages, injunctions, and content removal remain available through the courts

Our online defamation team stays current with all regulatory developments. Contact us for a free case evaluation.