Online safety and the regulation of large platforms and social media are topics that have competed with Covid-19 for top headlines in the last 2 years. A Draft Online Safety Bill was published in May 2021 and a Joint Committee convened shortly after to propose improvements including an inquiry with hearings from various different stakeholders.
On 14 December 2021, the Committee published its recommendations. Below we outline what the key recommendations are and what this means in terms of next steps.
What is the Online Safety Bill?
The Bill is the UK’s equivalent of the EU’s Digital Services Act proposals that are also still being debated and finalised. In short, the Bill seeks to impose new responsibilities on online user to user (essentially covering services with user generated content and user interactions) and search services. It proposes a new regulatory regime with oversight by Ofcom and, controversially, it had called for service providers to take more steps to protect users against illegal content but also legal but harmful content.
What Does the Report Propose?
Key recommendations of the Report are as follows:
- That the Bill should be clearer at the outset in its objectives. The rather provocative title of the Report - ‘No longer the land of the lawless’, leaves little room for interpretation as to how it thinks those should be framed.
- The Bill should be wider in the areas of harm it covers generally. Coming as no surprise to those following the lobbying and inquiry hearing proceedings, this means areas such as scams and fraud including in paid for adverts are specifically recommended to be covered. The Report also introduces is the concept of “reasonably forseeable harm”. Many lawyers already felt uncomfortable with the inclusion of “harm” and duties of care but the additional of terms such as reasonably foreseeable – well known law school debating fodder - is unlikely to be welcomed. “Reasonably foreseeable harms” should be covered by service providers in their risk assessments, the Report recommends.
- Further on the topic of ‘harm’, it proposes that the legislation should cover “content and activity” and algorithms and move away from a focus on moderation of content to wider considerations in respect of the design of online platforms. This is a big shift.
- Ofcom should have more powers in terms of investigations, audits and fines and should create mandatory codes of practice.
- New governance requirements should be included such as the need to have an online safety policy and appoint a ‘Safety Controller’ at board or reporting to board level.
- There is an acknowledgement that what is illegal online does have to be absolutely clear. The report proposes in line with Law Commission recommendations that new criminal offences should be added including for cyberflashing (indecent images) and flashing images in the context of having an intention to induce a seizure as well as the promotion of self-harm.
- The issue of keeping children away from online porn emerges again with the recommendation that sites should prevent children from accessing them even if the sites don’t include user to user content. Readers will remember that this is an issue that was always expected to return in the Online Safety Bill, porn age verification block legislation having been dropped previously at the eleventh hour back in 2019.
- The Report rightly recognises that further protections for freedom of expression are needed. It proposes an automatic exemption for recognized news publishers. One wonders how concepts of the protection of journalism here will play out in the context of the rise of citizen journalism, a phenomena that is expressly recognised in the ICO’s draft journalism code and journalistic exemption for example.
What Happens Next?
The Government must respond to the Committee’s report within 2 months. An updated Bill will then be presented to Parliament for further examination and final approval in 2022. With some far-reaching new recommendations, we anticipate a lot of further debate in the new year.