Why Section 179 of the Online Safety Act may be impossible to enforce fairly
The Online Safety Act 2023 was sold to the public as a way to protect people — particularly children — from the worst of the digital world. But tucked inside its many pages is a new criminal offence:
Section 179.
It makes it illegal to send a false message online with the intent to cause non‑trivial psychological or physical harm — and without a “reasonable excuse.”
At first glance, it sounds sensible. Stop people from deliberately spreading damaging lies.
But here’s the problem: how do you prove what someone knew when they posted or shared something online?
When & Who Added Section 179?
Section 179 originated at the drafting stage of the Online Safety Bill, introduced in the Commons in March 2022, following multiple pre-legislative discussions. The decision to create a false communications offence— replacing older laws like Section 127 of the Communications Act 2003 and parts of the Malicious Communications Act—was influenced heavily by media coverage of riots and misinformation after the Summer 2024 Southport events WikipediaByline Times.
As the Bill passed through the House of Lords earlier in 2023, peers debated and framed the new provision carefully. It was confirmed in Lords Report and Third Reading stages that Section 179 would become a stand-alone offence penalising individuals for knowingly sharing false material intended to cause “non-trivial psychological or physical harm” .
Thus, Section 179 was built into the Act as part of its original clause structure, rather than added late. Its shape reflects the Ministers’ intent to modernise communications offences for the digital age.
How the Law Defines Guilt
For a conviction under Section 179, prosecutors must prove that the accused:
- Sent or posted a message they knew to be false;
- Intended that it would cause non-trivial psychological or physical harm to a likely audience;
- Had no reasonable excuse to send it mishcon.comcps.gov.ukWikipediaonlinesafetyact.net.
In other words — it’s not enough that the content was false. The prosecution must prove definitely that the sender knew it was false and meant for it to hurt someone.
Why It’s So Problematic
🤔 Proof of Knowledge
How can you prove what someone believed at the instant they clicked “share”? It comes down to indirect evidence:
- Repeated posts from known unreliable sites;
- Private messages admitting uncertainty;
- Evidence someone was warned previously;
- Tone or context showing recklessness not belief.
The risk is that an innocent misunderstanding or over-eager sharing is treated as criminal intent.
⚠️ Subjective Harm
What counts as “non-trivial harm”? It’s not defined in law, leaving wide prosecutorial discretion. That creates inconsistency—and potential misuse.
⚖️ Intent Over Impact
You can be guilty without causing harm—just for intending it. That makes state of mind the centre of the charge, not the outcome.
Summary Table
| Element | What It Means |
|---|---|
| Introduction | Drafted into the Bill in 2022, confirmed by Lords in 2023 |
| Knowledge | Must prove sender knew message was false |
| Harm threshold | Must intend to cause non-trivial psychological or physical harm |
| Prosecution window | Within 3 years of offence being sent |
| Exemptions | Recognised news publishers cannot be prosecuted under this clause |
The Impossible Burden
Think about your own online habits. How many articles, videos, or posts have you shared in the last year?
Did you fact‑check every one of them?
Could you prove, in court, that you genuinely believed them to be true?
That’s what Section 179 demands: prosecutors would need to show that you knew a message was false at the time you sent it — not just that it was inaccurate, but that you personally understood it to be false.
That’s a very high bar. And yet at the same time, it’s also a very subjective one.
How Might They Try to Prove It?
Prosecutors could point to:
- Past behaviour: Had you posted similar content before and been warned?
- Private messages: Did you admit in chats or DMs that you knew it wasn’t true?
- Source reliability: Did you post from a site known for hoaxes or fabrications?
- Tone and context: Did you share it with the aim of stirring outrage rather than debate?
In other words, it won’t be about the post alone — it will be about proving what was in your head when you hit “send.”
Why This Is So Controversial
Critics of Section 179 — including legal commentators and free speech advocates — argue that it risks being:
- Overreaching – creating a chilling effect where people are too scared to share anything contentious.
- Politicised – leaving “truth” and “harm” to be defined by those in power at any given moment.
- Unrealistic – expecting everyday users to verify information with the rigour of a professional journalist before sharing it.
And that’s before you consider the murky phrase “non‑trivial psychological harm” — a term still undefined in law.
Intent vs Impact
Perhaps the strangest part?
You don’t even need to cause harm to be guilty under Section 179. You only need to intend it.
That means the offence is about state of mind — punishing digital intent, not necessarily digital impact.
Why This Matters
This isn’t just an academic debate. Laws like this shape how freely we can speak online.
Yes, there’s a need to tackle malicious disinformation. But if the line between malicious lies and honest mistakes is drawn too loosely, we risk criminalising people for sharing what they believed to be true.
And that should make anyone nervous — whatever their politics.
Hope isn’t what they promise you.
It’s how you carry on when they don’t deliver.
— Dave Carrera
