In my last blog I reported that the Online Safety Bill had finished all the deliberative stages of the UK’s legislative processes. Now it simply awaits the King’s signature. Once that has been completed and announced in Parliament in quaint Norman French, the Bill becomes an Act and is law. That will be later this month when Parliament reconvenes. This is when the hard work begins.
It is work civil society in general and the children’s sector in particular will find very challenging. The Bill provides a legal framework within which social media platforms and search engines must operate. It also has specific sections concerning pornography and content which is either illegal (for everyone) or harmful to children. However, while some provisions are plainly stated on the face of the Bill and need little or no further elaboration, a great many anticipate and require detailed codes of practice to be drawn up by the new Regulator, Ofcom, before being presented to Parliament for approval.
So many rules will need to be drafted, consulted upon and implemented. Over time their real-world operation and effectiveness will need to be tracked and assessed. Parliament will be establishing its own scrutiny processes and civil society will have to do the same. We cannot lie back and relax, putting all our eggs in the Ofcom basket and I’m sure Ofcom wouldn’t want that anyway.
This is going to be a permanent, or at any rate a long term-part of all our professional lives from now on. That’s on top of what is currently the day job. Whole new areas of expertise will need to be developed. These will have to become a standard part of the canon of child protection.
Big Tech, Big Bucks
In the rule-making that lies ahead, as usual elements of Big Tech will have big bucks to help navigate or establish a path of maximum advantage to themselves. There isn’t a “Big Tech Central Committee” that meets and agrees a common line on everything, although some of the trade associations can come close to being and doing that. However, having lost on a number of key points in Parliament we can fully expect some of the companies to engage aggressively to seek to minimise what they see as the adverse consequences for their businesses. In this they will find allies in civil society bodies that also campaigned against parts of the Bill.
Delay, delay
If an in-scope online business can delay changing their systems so as to meet any new requirements the law otherwise imposes, that’s what they will go for and if they achieve a delay, who knows, in the meantime something might turn up to “rescue” them. A dollar you spend tomorrow will be worth less than a dollar you spend today. A win-win. For them. Not children.
So expect everything to be dragged out to the maximum extent possible. And here we have to have some sympathy for Ofcom. They must assume elements of Big Tech are looking for any and every opportunity to go to court to challenge even the slightest misstep, particularly where they can allege there has been insufficient time to formulate a response to this or that draft proposal. The basis of the case can be exceptionally slim but it will nevertheless give them a chance to slow things down. Which is good. For them. Not for children.
Then there’s the words themselves. In the processes which are coming down the track, some will, in effect, as stated, refight the points they lost when the Bill was in Parliament. They will try to water things down, maybe even slip in or allow a mickey to give them grounds to go to court later.
Vague words are better than clear words. For them. Not children. Vague words allow wiggle room and, if that doesn’t work, vague or imprecise words can also provide another reason to go to law in the hope the court will narrow the meaning or, hitting the jackpot, declare the proposed or actual measure void for uncertainty so the process must begin again. More delay. See above.
Have I any reason not to be this cynical? No. I do not. See below.
Children’s shop stewards
The children’s sector is the nearest we have to a children’s shop stewards movement. Not being in any way beholden to the Government or any commercial interests we are the children’s trades unions, the organized voices of children, the voices focused solely on children’s rights and best interests. We have friends and accomplices, the Children’s Commissioners spring to mind, but few have the capacity to be as nimble or as focused. Then there are the parents’ bodies and a range of civil society organizations concerned, for example, with the rights of women and girls.
It will be very much in Ofcom’s, the Government’s and Parliament’s interests to ensure the children’s sector and these others can participate in the processes which are about to begin, and do so in a satisfactory, rather than a merely cosmetic or box-ticking manner.
How this will be achieved remains unclear to me but one thing is blindingly obvious: children’s groups will need to lay their hands on substantial amounts of moolah. It must come from sources which do not appear to compromise the independence of the recipients.
The self-regulation experiment is over
That is a headline I have waited a long time to write. Yippee!! Now we have a framework of law and accountability. There is something almost poetic about how self-regulation started with and was ended by Conservatives.
In 1996 Ian Taylor MP was Minister for Science and Technology in John Major’s Government. He was approached by the leadership of what then passed for the UK’s internet industry. They asked him not to try to regulate their behaviour.
” We understand the technology. We are all good chaps. We have kids ourselves. Leave it to us, you can trust us to do the right thing.”
Similar conversations took place in pretty much every liberal democratic country in the world, and with roughly the same outcome. We did trust them. I hesitate to say we were taken for fools because, at least in the beginning and for some time, I and many others, I’m thinking of the likes of Richard Swetenham of the EU, believed a serious effort was being made to create an internet that was much safer for children, not because the law required it, decency did. However, the internet then rapidly became internationalized and fell under the spell of libertarian ideologues, particularly in the techie world. They found a perfect match in free-market-loving entrepreneurs. A marriage made in….where was that marriage made? California. A state within a country which has a very different view of children’s rights and of Governments’ obligations to protect or provide those rights. Or not, as the case may be.
True enough in those early days the internet industry was very different from today’s, which is much more fragmented and diverse, but that early, well-intentioned, optimistic trust placed in industry leaders is what made possible what came next, what we are now having to correct.
Yes of course the internet has delivered huge benefits, including to children, but it has also delivered great evils. However, because those early internet industry leaders and their successors could not, on a voluntary basis, come up with a way to create a safer internet which would make them as rich, on the contrary they feared if they went too far less scrupulous competitors would eat their lunch, essentially they abandoned the effort, hunkered down to see how long they could make the good times last, the money-making times.
Naturally they would have preferred not to be criticised for the harm they did to children and others and they spent a lot of money on surrogates and good PR to try to mute or minimise such criticism. But in the end it came down to money.
To put that slightly differently, if there was a way to make an internet service that was safer for children pay as much as or more than a less safe one, does anyone doubt that would be what we got? Given a choice between more money and less money they chose more money. Their legal obligation to maximise shareholder value permitted a multitude of sins. They could take or ignore the brickbats as long as shareholders were kept happy, or happy enough.
Only countervailing legal compulsion will make them change their ways and that is what the UK now has. And we have it because a democratically elected Government operating in a democratic institution has made it so. Shareholder revolts didn’t pull it off. Ethical investors did not deliver. Voters did. Public opinion did. The worm finally turned.
The main points of the Bill
These will follow in Part Two, later today.
Desiderata 