The importance of Clause 36(3), money and general monitoring

OK. I am going to shout it out loud, or rather I am going to put it in writing, in public, which is sort of the same thing.

There is a great deal in the UK’s Online Safety Bill (OSB) I like. A lot. Stuff we have been campaigning for over many years. However, it is also clear “le diable sera dans le détail”or, as in this case, “les codes de pratique et règlements.

If you don’t mind being accused of being, er, a poseur, if you are going to say something utterly banal it probably helps to say it in a foreign language. It suggests this is no ordinary, banal banality.

In other words, on top of what appears on the face of the Bill, the success of the OSB in no small measure is going to be determined by a whole series of codes of practice and regulations which Ofcom and the Secretary of State will draw up. Remember “whole series”. I will return to it. But first:

Clause 36 (3)

Clause 36 (3) of the OSB tells us why, in particular, the codes of practice matter:

A provider… is to be treated as complying with [the] safety duties for services likely to be accessed by children…if the provider takes the steps described in a code of practice…”

The OSB says similar things in respect of other codes that will be published on reporting, record-keeping and transparency duties, terrorist content, legal but harmful content, and the like. Codes of practice and regulations are going to carry a heavy burden. For now I will focus on children-related dimensions.

Thus, in terms of legal compliance and liability it seems if platforms do what the codes prescribe they will retain the same broad legal immunity which up to now has protected all intermediaries, irrespective of their size. The OSB does not expressly say that but broad immunity is an established part of the background radiation (the eCommerce Directive?) so at least one eminent lawyer believes that to be the case.

I have no quarrel with that. In my view, if a platform meets the terms of the OSB, the codes and regulations, they are entitled to retain broad immunity in relation to items posted by third parties where, prior to notification or discovery, they had no knowledge.

After all, the codes will be detailed and will decisively shape the behaviour of intermediaries. Turning to child sexual abuse material, for example, there is no doubt or ambiguity in relation to precisely what is expected of platforms (see below).

The logic of the codes of practice

And if an intermediary does not follow the codes, regulations or the terms expressly stated in the OSB? What then?

There will be a system of fines and other penalties. These are set out in the OSB or will be in what follows. However, the likely effectiveness of these fines and penalties are being argued about, not least because of doubts about Ofcom’s ability or inclination to mount and sustain an enforcement regime on the scale required.

The risk is obvious. If platforms conclude Ofcom is a paper tiger or is so overstretched they have little to fear any time soon we will have failed.

Platforms must believe there is a serious risk they could be turned over, held accountable, and not in the far distant future.

Ofcom needs an ally. Children need an insurance policy. I have one.

No compliance? Lose the relevant immunity.

Thus, for the avoidance of doubt, somewhere in the OSB it should be made explicit that where a platform governed by a code of practice or other regulations fails to honour the terms, not only could it become subject to the penalties the OSB will usher in, it will also forfeit any and all criminal and civil immunities from which it would otherwise have benefitted.

To be clear: I am not suggesting if platforms fail to honour the terms of a code or regulations they forfeit all immunities in respect of everything they do. That would be unreasonable.

But where a reasonably foreseeable actual harm has resulted or is alleged to have resulted from a failure to implement the terms of a code or regulations then whoever can be said to have been injured as a result should be free to bring an action which would previously have been barred or would have failed because of the immunity. The immunity is therefore lost only insofar as it concerns and is limited to the reasonably forseeable harm suffered by an identifiable individual or group.

Something like this would focus the minds of every Director or senior manager of every platform and would relieve Ofcom of a great deal of the responsibility for ensuring online businesses are routinely following the law rather than just hoping they never get caught or inspected or if they are it will be some time hence when today’s culprits might have already vanished with the loot.

“Whole series”. Big burden

It is apparent we will soon be seeing a raft of draft codes of practice which Ofcom has to prepare. Doubtless there will also be drafts issued by the Secretary of State in relation to his powers and obligations.

No problem. In principle. But… will things work in practice?

A vast army of in-house and trade association lawyers and many lawyers in firms hired to supplement them are going to be able to buy their second or third yachts off the back of the work on the consultation and implementation of these codes and related regulations. Some of the preparatory analysis will already have happened and be feeding into Big Tech’s extremely well-funded lobbying strategies.


So how is civil society’s voice going to be heard? I know of no children’s organization in the UK which has the capacity to engage with these processes to anything like the degree that is going to be required or for the period of time entailed.

Every children’s charity is strapped for cash. A great many Charitable Foundations that sometimes step into the breach similarly are having a hard time. Yet if the proposed new regime is to work to best effect and in the way the Government intends, Ofcom or someone other than Big Tech needs to provide some cash.

I am not suggesting we can ever achieve a level-playing field as between children’s organizations, the civil service and Big Tech but something must be done to ensure the tables are not so vertinginously tipped against children’s interests being represented. The processes which lie ahead are going to require a sustained level of detailed engagement.

If there already was an industry levy which Ofcom administered that would be the obvious solution. But there isn’t so maybe as the OSB progresses through Parliament the Government can address this vital question.

General monitoring? No.

One of the supposedly sacrosanct articles of faith of internet governance hitherto has been that intermediaries should be under no obligation to undertake “general monitoring”. It first appeared in the USA courtesy of s230 of the CDA. We copied it in the eCommerce Directive of 2000. It lay at the root of much that later went wrong for children online albeit it took some time for us all to realise it. However, once we did realise it there was no excuse for sticking with it. Yet that is precisely what the EU appears intent on doing.

In the EU’s draft proposal for a new Digital Services Act (DSA) the immunity provisions are repeated eight times e.g. as here on page 13.

The proposed legislation will preserve the prohibition of general monitoring obligations of the e-Commerce Directive, which in itself is crucial to the required fair balance of fundamental rights in the online world.”

It is then further elaborated and developed in Article 7

“Article 7

No general monitoring or active fact-finding obligations

No general obligation to monitor the information which providers of intermediary services transmit or store, nor actively to seek facts or circumstances indicating illegal activity shall be imposed on those providers.  (emphasis added)

The bit in bold is a remarkable thing for any organization to say if it also wants to claim it is concerned with upholding the rule of law. I paraphrase:

Dudes. Chill. You don’t have to try and find out if any criminals are using your facilities to abuse children. Nah. Spend more time on the beach. Or innovating. Your choice. No pressure.”

The UK is going its own and better way

I am very pleased to say the UK’s OSB does not repeat the archaic and ridiculous formula of the EU’s proposed Article 7.

But make no mistake, neither does the UK impose a ” general monitoring” duty. It solves the problem in a different way by imposing quite specific, targetted objectives and requirements.

Here’s an example. Clause 21 (2) of the OSB, sets out the duties which all platforms have in respect of illegal content, of which child sexual exploitation and abuse (CSEA) is a priority category. Providers must take

proportionate steps to mitigate and effectively manage the risks of harm to individuals, as identified in the……illegal content risk assessment.”

In 21(3) in respect of providers of search facilities, the wording is even more explicit. They have a duty to:

minimise the risk of individuals encountering priority illegal content.”

Is that an instruction to engage in general monitoring? No it is not. It is an instruction to use available, reliable and privacy-respecting technical tools to detect known illegal content.

What could be wrong with that?

About John Carr

John Carr is one of the world's leading authorities on children's and young people's use of digital technologies. He is Senior Technical Adviser to Bangkok-based global NGO ECPAT International and is Secretary of the UK's Children's Charities' Coalition on Internet Safety. John is now or has formerly been an Adviser to the Council of Europe, the UN (ITU), the EU and UNICEF. John has advised many of the world's largest technology companies on online child safety. John's skill as a writer has also been widely recognised.
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