The Online Safety Bill: what’s next and key areas for debate

The UK Government has published a draft Online Safety Bill for pre-legislative scrutiny. This marks the start of a lengthy legislative process likely to be full of lively debate. In this blog, Nicolette Stickland outlines the next steps and some areas of the Bill likely to attract scrutiny by Parliamentarians.

The Draft Bill will be scrutinised by a parliamentary joint committee, which should take evidence from interested stakeholders and recommend any changes to the Bill before it is formally introduced to Parliament. The Government plans to introduce it in 2021, though it is unlikely to come into force before 2023.

Scope

Parliamentarians may seek to clarify the scope of regulated services, where the requirements for certain services include those where there are “reasonable grounds to believe that there is a material risk of significant harm to individuals” arising from content present on the service or content that may be encountered in or via search results. In addition, much has been made of the increased demands on Category 1 services (the largest companies with the highest risk activities taking place on their platforms) and the thresholds for inclusions in such a category.

Harms and legal but harmful content

The draft Bill provides that online content will fall within the meaning of “content that is harmful” if the provider has “reasonable grounds to believe that the nature of the content is such that there is a material risk of the content having, or indirectly having, a significant adverse physical or psychological impact", or if there is a similar impact from dissemination of the content. The Bill also provides that priority harms can be defined in secondary legislation, which will lead to discussions about the types of harms that may be included within such secondary legislation and how phrases regarding legal but harmful content such as “material risk”, “indirectly having” and “significant adverse physical or psychological impact” are likely to be construed or implemented in practice by in-scope companies.

Following the new inclusion of online fraud from user-generated content, such as so-called “romance scams”, there may be discussion of how this will function alongside separate regimes addressing fraud in areas like online advertising or email scams, and whether there is any further scope for widening the harms addressed.

While the scope focuses on harms to individuals, parliamentarians may raise issues around harm to particular groups in society, such as in relation to racist abuse. Also, whether, despite the focus on user-generated content, there should be further attention paid to the role of entities such as commercial pornography websites, given the risks of access to harmful material on such sites by children and young people. This may be part of a debate on how the Bill can protect children because the Bill repeals Part 3 of the Digital Economy Act 2017. This dealt with age verification measures for commercial providers of online pornography and outlined new measures in this area. An additional potential area of contention may involve measures to tackle online anonymity.

Exemptions and countervailing duties

There are exemptions for various services and online “functionalities” where they are considered lower risk and/or it is considered that the duties should not apply given the nature of the content. This includes “news publisher content”, where users post links to full news articles; and “limited functionality” user-generated content, such as posting comments and reviews on content posted by a provider or website. Given that the Government has also included a power within the draft Bill to potentially repeal certain exemptions (such as limited functionality services) in future based on risk of harm, there may be questions as to what level of “risk of harm” might come within the scope of the legislation.

Another focus for parliamentarians may be issues and definitions related to news publisher content and how companies will comply with the new duties to protect “journalistic content”. This includes content generated by individuals “for the purposes of journalism”, and “content of democratic importance”. This is particularly the case in light of recent debates about the balance of power between platforms and news publishers, and high-profile examples of political figures locking horns with social media companies.

On a more general level, it will be interesting to see whether the included safeguards – some of them late additions – in the draft Bill for such content, as well as for freedom of expression and privacy will be viewed as sufficient to protect freedom of speech within the framework by some of the more outspoken critics in Parliament.

Enforcement

Another area of debate to watch out for is in relation to the enforcement powers of Ofcom, the regulator, under the new framework. There may well be some parliamentary disagreement about the (albeit deferred) inclusion of potential criminal sanctions for senior managers under the framework, both from those who are unhappy with even the (potential) inclusion of a criminal sanction in this area and from those who may wish to see the regime go further (or faster) in this regard.

As indicated in the discussion above, we are likely to see a spread of parliamentary positions on the draft Bill, but the main divide that is likely to emerge is between those concerned about whether the Bill goes far enough in protecting individuals from online harms such as child abuse, and those who feel the Bill goes too far or does not do enough to balance the responsibilities of companies between opposing duties, risking the open nature of the internet.

The nature of this area of online regulation, and the rights and harms at stake, as well as the range of affected groups with strong positions, will see the Bill receive careful attention from legislators. Inline will be following the Parliamentary debate as it evolves and assessing the implications for the final regime.