In July we published an article on the proposed Online Safety Bill (Tackling illegal & harmful online content), the political turmoil around the Tory leadership election and the subsequent premiership of Liz Truss put a hold on the progress of the Bill. There was concern that some of its more controversial provisions might result in the Bill performing the same ignominious disappearing act.
However, the Bill returned to Parliament and completed its report stage on 5 December although there have been a number of significant amendments.
As we reported in our original article one of the most prominent and controversial aspects of the original Bill was an obligation for service providers not only to detect and remove illegal content but also to take down legal but harmful content. Concerns were raised over a lack of certainty as to what would be “harmful” and the potential ability to curtail free speech. The Bill retains the requirement to remove content if it is illegal or breaches the service providers’ terms of use but the requirements relating to harmful content have been dropped.
New criminal offences have been introduced including controlling or coercive behaviour and assisting or encouraging self-harm and these will be listed as types of illegal content which service providers must take steps to remove.
In place of a requirement to remove harmful content service providers are now required to provide adult users with greater information and choice over the content they access, and to provide tools to protect them from being exposed to harmful content they wish to avoid. This might include content promoting eating disorders or inciting hate on the basis of race, ethnicity, sexual orientation or gender reassignment.
This combination of the requirements to remove content which is illegal, to remove material which violates the service providers terms of use, and to give users tools to protect themselves from harmful content have been termed the “triple shield of protection” by the government.
Perhaps in response to the concerns posed by the ability of service providers to use the Bill as justification for curtailing free speech and to avoid service providers from simply deleting anything controversial so as to err on the side of caution, restrictions have been placed on service providers ability to interfere with users and their content. The Bill prohibits service providers from removing or restricting legal content and from restricting or banning users unless the user has breached the law or the service providers’ terms of use.
In addition there are other measures which have been introduced to provide further protection for children. These include requiring service providers to explain in their terms how minimum age limits are to be enforced and to publish child risk assessments setting out the risks their services pose to children. Service providers will also be required to publish details of any enforcement action taken against them by Ofcom.
In addition to the proposed amendments one issue which remains a major concern is the Bill’s potential to undermine encryption. The Bill requires technology to be put in place which can identify terrorist content or child sexual exploitation/abuse and which can provide Ofcom with information it needs to exercise its online safety functions. The concerns raised by the tech sector are that the only way to achieve this effectively is to scan all messages before they are sent to check their content. This effectively undermines end to end encryption; encryption that is essential to ensure users are protected and to prevent cyber-attacks and identity theft. The tech sector has also raised concerns that creating a security backdoor to enable a party to comply with their obligations inevitably raises the prospect that the same backdoor will be used by those with nefarious intent.
On 16 December 2022, the government published a guide to the Online Safety Bill which sets out what the new internet safety laws will mean for adults and children A guide to the Online Safety Bill - GOV.UK. The intention is still that the Bill will come into force in May 2023, most likely with a phased approach to bringing in the various online safety duties together with Ofcom’s enforcement powers. Although there may well be further changes as the Bill makes its way through Parliament, the legislation has shown considerable resilience to changes in the political landscape - it is now on its fourth Prime Minister since publication of the original white paper – and it seems likely that it will eventually appear on the statute books in one form or another. We will keep you posted on any future changes.
Please contact Chris White at [javascript protected email address] for more information on this subject, or to ask a question.
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