Independent report

Animal Sentience Committee: Online Safety Act report

Published 23 October 2024

Animal Sentience Committee Report on The Online Safety Act.

1. The policy

The Online Safety Act (OSA), developed by the then government, received Royal Assent in October 2023. Its duties specify that search services and peer-to-peer user platforms must implement systems and processes to prevent and remove illegal content appearing via search results or on their services. Illegal content includes ‘priority offences’ which are specified in schedules to the act, and other illegal ‘non-priority’ offences which could harm users (adults or children).

In addition, the OSA requires providers to implement systems to prevent children accessing “content that is harmful to children”. Harmful content encompasses a broader range of material than illegal content.

One category of illegal ‘priority offence’ under the OSA is an ‘offence under Section 4(1) of the Animal Welfare Act 2006 (unnecessary suffering of animals)’.

2. Implications of the policy

The primary intention of the OSA is to protect adults and children  from illegal content, and to protect children from content that may harm them. Because illegal content includes offences under the Animal Welfare Act 2006, the OSA will reduce the risk that users encounter live-streaming of unnecessary animal suffering, and content that might encourage others to cause, or assist in causing, unnecessary animal suffering.

In consequence, the OSA should also have positive benefits for animal welfare, directly reducing the risk that sentient animals suffer in the creation of online content and promoting positive societal attitudes regarding the acceptable treatment of animals. Prohibiting content that encourages animal cruelty, neglect or abuse is a marked step forward in animal protection.

However, there is a potential shortfall in the extent to which the OSA pays due regard to animal welfare. This arises because it is not an offence under the Animal Welfare Act (2006) to record or publish the unnecessary suffering of animals and because the OSA does not make it a new offence to do so. Pre-recorded content depicting animal suffering is thus not de facto illegal content under the OSA.

3. Evidence collected by the policy team

The original bill was primarily concerned with illegal content that affects humans. In a written response to ASC questions, the DSIT policy team confirmed that the inclusion of unnecessary suffering to animals (as defined by the Animal Welfare Act, section 4(1)) was added to the schedule of priority offences in September 2023, after considering a House of Lords amendment made at the report stage. The motivation of the Lords’ amendment was to prohibit content facilitating or likely to incite animal torture and animal cruelty, as described in the press release at the time. ASC is aware that some consultation with stakeholders took place while the Lords’ amendment was being considered.

4. Implementation of the policy

How was the policy implemented or how will the policy be implemented and what does or did this mean for animal welfare in practice?

The communications regulator, Ofcom, will play a pivotal role in setting out the systems and procedures that providers should use to fulfil their new duties and on how they should make contextual judgements.

Ofcom has engaged with a number of animal welfare NGOs in developing the positions set out in a consultation which closed on 13 September 2024. This consultation will help to develop guidance on how best to protect users from harms associated with illegal animal-related content.

Ofcom will also have a key role in developing guidance and providing examples of content that is harmful to children, including content relating to animals. This is being addressed separately from the guidance on illegal content.

5. Committee’s views

Outline the Committee’s views on to what extent the policy made by the government, paid all due regard to the ways in which there may be either a positive or adverse effect on the welfare of animals as sentient beings?

The ASC understands that the primary intention of the OSA is to protect adults and children from illegal content, and to protect children from harmful content. However, the indirect benefits of the OSA in reducing animal suffering have been widely welcomed by stakeholders. The ASC considers that the previous government paid due regard to sentient animals in making an amendment reflecting the Lords’ intention to include unnecessary suffering to animals as a priority illegal offence.

The ASC considers that additional consultation could have taken place to consider whether sole reference to offences under the Animal Welfare Act 2006 was the best mechanism to achieve this. The Animal Welfare Act 2006 does not, for example, apply to sentient invertebrates or to free-living wild animals, and so potentially harmful content relating to violence and injury to, and unnecessary suffering of, these animals is not included, for example, dismemberment of live octopus or injury of wild animals caused by catapult.

It is also not an offence under the Animal Welfare Act 2006 to record or publish content showing the unnecessary suffering of animals, only an offence to cause such suffering. The result of this is that live-streaming acts that cause unnecessary suffering (to protected species) will be priority illegal content under the OSA, but recorded content showing such acts may not be, unless it very clearly encourages others to commit similar illegal acts or where it amounts to a different kind of priority illegal content such as harassment.

The ASC finds this counter-intuitive and is concerned that the inclusions of the Animal Welfare Act offence relating to unnecessary suffering as a priority offence is insufficient.

Ofcom recognises this gap and is currently consulting on mechanisms to address it. One proposal is that, as acts of deliberate animal cruelty or torture which are ‘grossly offensive or of an indecent, obscene or menacing character’ could amount to an offence under the Communications Act 2003 (section 127), Ofcom’s Register of Risks and Illegal Content Judgements Guidance could include this non-priority offence.

However, the ASC is concerned that reference to the Communications Act in guidance will fall short in this regard. A focus on acts of deliberate cruelty and torture captures only part of the pre-recorded online content associated with unnecessary animal suffering. The responsibilities of content providers relating to non-priority offences are also weaker than those relating to priority offences, meaning that such content may be less likely to be removed.  

The ASC questioned whether there could be unintended consequences of the OSA in restricting or preventing legitimate investigation or campaigning on behalf of animal welfare but was reassured by written responses from the policy team and by their discussions with Ofcom. The ASC is satisfied that safeguards are in place to ensure a consideration of context and purpose, and to avoid unnecessary or counter-productive content removal.

6. Committee recommendations

Outline any recommendations the Committee considers the government should take for the purpose of ensuring that, in any further formulation or implementation of the policy, the government has all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings.

The ASC notes that it is not an offence under the Animal Welfare Act (2006) to record or publish content depicting the unnecessary suffering of animals. In consequence there is a risk that content depicting animal suffering will be removed only if it is live-streamed or if it can be proved that it is encouraging others to harm animals.

1. The ASC recommends that officials and ministers consider whether an amendment to the Animal Welfare Act (2006) or to the OSA could be made to prohibit recording and publishing material that depicts the unnecessary suffering of animals (unless such material is clearly intended to prevent such suffering). This may greatly simplify the operation and guidance of the OSA around animal cruelty.

In the current absence of either provision, Ofcom is consulting on whether the gap can be addressed by using the Communications Act 2003. The ASC considers that referencing the obscenity provision in the Communications Act 2003 will only partially address the shortcoming and so does not pay due regard to animal welfare. The obscenity provision directs focus on acts of deliberate torture and cruelty. Other forms of unnecessary suffering will not be captured.

1. The ASC recommends that Ofcom consider the complexity this will add for service providers. 

2. The ASC recommends that guidance should emphasise that viewing recordings of unnecessary suffering of animals has a high potential to encourage others to cause suffering to animals.

3. The ASC notes an inconsistency in the protection afforded to sentient invertebrates. Cephalopods and decapod crustaceans are considered sentient under the Animal Sentience Act but not covered by the Animal Welfare Act (2006). Online content depicting their unnecessary suffering (for example, eating of live octopus) will not be illegal content. The ASC recommends that officials and ministers take appropriate steps to resolve this inconsistency.

4. The ASC notes that free-living wild animals are not covered by the Animal Welfare Act (2006). Online content depicting their unnecessary suffering will not be illegal content. The ASC recommends that officials and ministers take appropriate steps to consider whether the Priority Animal Welfare Offence in the OSA could be expanded to include wild animals.

5. The ASC notes the role of Ofcom in developing guidance around animal-related content that is harmful to children. The ASC recommends that Ofcom officials consult with appropriate animal welfare stakeholders in drawing up its case examples so that key information is not missed. Suffering can be caused to animals (and hence harm children) not only through violence and injury, but by many other means.

6. Providers will also have to identify content which presents a material risk of harm to an appreciable number of children. The ASC recommends that companies are signposted to appropriate animal welfare organisations to help identify this category of content where it involves animals.

7. Ofcom signposts those who have been affected by illegal or harmful online content to appropriate support services, including the Report Harmful Content platform. The ASC recommends that Unnecessary Suffering to Animals is designated as a specific type of harm, and that records are kept of the number and type of reports made under this designation.

The ASC recommends clear guidance to ensure that educational content that is unambiguously designed to discourage the unnecessary suffering of animals is permitted.

In summary, due regard was paid to animal welfare when an amendment to include unnecessary suffering to animals as a priority illegal offence was made. However, all due regard was not paid when selecting a method (reference to the Animal Welfare Act 2006) to achieve this.

In consequence, recorded content depicting unnecessary animal suffering may not always be considered illegal and may not be removed. The proposed mechanisms to mitigate this problem are at best partial, and incompatible with effective enforcement. The ASC urges particular attention to its first recommendation, an amendment to the Animal Welfare Act (2006).

7. Concluding remarks

The DSIT policy team provided extensive and useful written responses to the ASC’s initial questions. The Ofcom team working on guidance and implementation related to illegal animal-related content provided useful clarifications around their consultation in an online meeting in September 2024. The DSIT policy team provided open and helpful responses during an online meeting to discuss the ASC draft report in September 2024.

8. Governance

The Animal Sentience Committee members who were responsible for developing this report are:

• Professor Christine Nicol

• Professor Richard Bennett

This report was produced in October 2024.

Read more information about the ASC.