23 January 2023
Radar - January 2023 – 2 of 3 Insights
As we discussed here, progress of the Online Safety Bill, the UK's draft legislation to regulate user generated content online, stalled at report stage after its second reading when Boris Johnson stepped down as Prime Minister in July 2022. In the meantime, the EU passed its Digital Services Act which looks to regulate similar although not identical issues.
The Online Safety Bill resumed its progress in December 2022, after a five month delay. The government proposed some significant amendments. Owing to the stage to which the Bill had already progressed, the government returned a limited number of clauses to the Public Bill Committee to allow them to go through line by line scrutiny. The clauses went back to the whole House for its third Report stage on 17 January 2023, and the Bill now moves on to the Lords where it is expected to face a large number of amendments. The plan is for the Bill to pass in this parliamentary session (ie by Spring 2023).
Changes in the republished Bill include:
The Bill also contains new offences including:
The draft harmful communications offence has been removed. The government considers this is a risk to free speech. In addition, there are new duties on major online platforms to prohibit them from removing or restricting user-generated content or suspending or banning users where this does not breach their terms of service or the law.
The government went on to publish a guide to the Online Safety Bill. It covers how the OSB will protect children and adults, the type of content that will be caught, and enforcement.
The government has said it is not abandoning the idea of regulating lawful but harmful content, it is simply placing the responsibility for doing so on the platforms which host the content by asking them to enforce their terms of service. Ofcom is also in the frame. For those categories of content for which there are duties, Ofcom is required to produce guidance and examples of the type of content it considers are included.
Additionally, campaigners argue that the revised OSB lacks teeth and will fail to protect those most vulnerable to harmful online content. Measures tend now to focus on remediation rather than prevention and on users setting their own preferences to help filter out unwanted content – not necessarily an effective strategy for protecting the vulnerable. Since the revised Bill was published, a group of Tory rebel MPs took up the issue and forced a change to the Bill which will make senior managers at social media firms (and potentially other tech firms) criminally liable for serious and persistent breaches of their duty of care to children. This will not criminalise executives who have "acted in good faith to comply in a proportionate way".
The Labour party has said it will be seeking to amend the Bill to bring it more in line with the previous version ie to bring back the 'lawful but harmful' content provisions to the face of the legislation. If those efforts are unsuccessful, Labour has hinted at changing the law again should it win the next general election.
The Bill is expected to pass in the first quarter of the year. But, as we have said before, much of the detail will be set out by the Secretary of State and Ofcom. Perhaps even more so than under the previous version of the Bill.
23 January 2023
by multiple authors