On 7th June the UK’s Online Safety Bill (OSB) will finally begin its line-by-line scrutiny in a Committee of the House of Commons.
Parts of the Bill have been an unusually long time coming. Others are of more recent vintage. The lobbying has been intense. However, it looks like there is now a great deal of all-Party support in both Houses of Parliament, at least for most of the major child protection and child rights elements. In that sense delay has worked to our advantage and is a major credit to the diligent briefings of a broad range of academics, children’s and civil society organizations.
Important gaps and deficiencies in the text have been identified. I am hopeful many will be put right because, as far as I can see, none raise issues which are likely to cause divisions which will split on Party lines. The “only” thing that will count is the attitude the Government takes and whether it is willing to whip against a widely-established consensus. The current political weakness of HMG ought to help us here. There are just so many fights the powers that be can have with their backbenchers at the moment, particularly ones which may allow them to be portrayed as being careless about children or being unduly favourable to the interests of Big Tech.
After it has completed its passage through the House of Lords, with a fair wind the Bill ought to receive Royal Assent and be enacted by the end of December or early January.
Many of the necessary definitions and parameters which will ultimately define the scope and purpose of the new law will, or ought, to appear on the face of the Bill. But it is already crystal clear that, after Royal Assent, there will inevitably be a whole raft of regulations which the independent Regulator (Ofcom) will have to prepare to give concrete expression to the legislators’ intentions and to provide greater certainty to all interested parties. This will take time. A lot. Every dot and comma will matter. Lawyers will be able to buy second homes in the Cotswolds off the back of their endeavours.
This raises the first major concern. Following the Bill becoming law it could still be two-to-three years before some things kick in and start working to protect children.
Two-to-three years is a long time in the life of a child. Many of us are looking for smart ways to speed things up. In respect of items which appear on the face of the Bill, a bit of speeding up might easily be on the cards but if left wholly or very substantially to Ofcom to put into a regulation it becomes somewhere between tricky and impossible.
There is a related issue which is also worrying. When it comes to enforcement some of the steps which Ofcom may be required to take are excessively and unnecessarily prolonged and complex. That significantly increases the risk of the law becoming ineffective. It is entirely possible to shorten the enforcement processes without doing violence to any principles of fairness.
But legal immunity is retained?
Final high level point in this blog: the Bill as it stands appears to leave untouched the legal immunities embedded in the EU’s e-Commerce Directive of 2000. They remain unaltered in UK law. The OSB therefore creates no new, meaningful enforceable rights for individuals. Zero empowerment for people. Adult or child.
From a child’s point of view pretty much everything will therefore hinge on how well Ofcom engages with the platforms. Super complaints or an Ombudsman, even both, do not hack it. We are creating a single point of failure. Children need an insurance policy.
The NSPCC is proposing the creation of a children’s advocacy body and that would help hugely, particularly at the level of policy and with engaging in the many detailed processes the legislation anticipates. If, in addition, platforms knew they could also be directly liable to a child for any harm caused to the child by the company’s failure to honour an Ofcom Code of Practice or other provisions of the OSB, that would very definitely focus people’s minds. Big time. That would be an excellent insurance policy.
There is a body of English law which addresses a “breach of statutory duty”. It should be made explicit on the face of the OSB that its provisions are subject to that doctrine.
Please note I am not suggesting we open up platforms to liability under the wider laws of tort, tempting though that is, but as things stand someone is going to have a hard time explaining to an injured child or their parents why a failure to obey the law does not give them any rights of redress against those responsible.
Kill the Bill?
The Economist (and others) are already saying the Government should
“scrap (the Bill) and think again”
Precisely because the Bill has developed such a strong and broad body of political suppport that is not going to happen. However, there seems little doubt that elements on the right of the Conservative Party are preparing to attack, in particular, those parts of the Bill which address “legal but harmful” content because they believe they present a threat to free speech rights and therefore to key values of liberal democracy.
But please note in the OSB “legal but harmful” is divided into two categories: that which is likely to be harmful to children and is found on sites or services “likely to be accessed by children” and content which is “legal but harmful” to adults and could be found anywhere. There will be more focus on the latter than the former so it will be important to ensure one does not bleed into the other thereby depriving children of a level of protection they are otherwise entitled to expect.
There is also the still unlikely but possible defenestration of Boris and the prospect of an early General Election with a new Tory Leader. That would definitely introduce a high element of uncertainty and, irrespective of the outcome would push back implementation considerably. There is absolutely nothing any children’s groups can do about this. It is in the hands of Tory MPs who will be weighing other factors in the balance e.g. their seats.
Thus, defenestration aside, as the Bill makes its way through Parliament we must expect various tech companies and other interests to try to narrow or change its scope. Many civil civil society groups and companies have said they now favour regulation but what they really mean is their version of it. What they didn’t get Ministers and civil servants to include in the draft before it was published will be the subject of one last push.
Even when the Bill becomes an Act and departs the limelight generated by the immediacy of the Parliamentary processes this will not stop. As Ofcom begins its consultative work we can expect to see the same civil society groups along with tech company employees, stooges, surrogates and lobbyists going in to bat with clear instructions:
- Continue trying to narrow and reduce the scope.
- More for businesses – maximise the scope for the exercise of discretion by individual companies. Set the bar as low as possible. Reduce the number of transparency requirements and legal obligations. Eliminate or reduce as many penalties as possible.
- Either way drag it out for as long as possible. Certainly the businesses will feel they are doing OK with the status quo. If they have to spend cash changing current systems or developing new ones, spending that cash two or three years from now means the real cost will almost certainly be lower, maybe a lot lower. Who knows, with luck by then things might have changed as the Regulator flounders and retreats in the face of complexity and a barrage of law suits already being prepared.
Annoyingly but inevitably, both in Parliament now and afterwards with Ofcom, even interest groups which would not normally align themselves with tech will, for their own reasons, nevertheless provide tech with cover for some or all of the above. That is emphatically NOT a reason for accusing them of being tech’s stooges, surrogates or lobbyists (unless evidence is available to show otherwise). We have to take each argument at face value and deal with it on its merits.
The Economist got this bit right
In my next blog I will try to summarise what I think are the major child protection headlines of the OSB. Here suffice to say I agree with this Economist headline:
“Britain’s Online Safety Bill could change the face of the internet”
As you might have guessed from the earlier reference the Economist article itself is not sympathetic to the Bill as a whole but that is because it largely focuses on one narrow if (incredibly) important aspect, the“legal but harmful” argument.
I will not get drawn into that in this blog but I will return to the subject soon because what it illustrates is the danger of applying rules and ways of thinking that were developed in a wholly analogue world to one which is now so thoroughly dominated by digital.