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The Online Safety Bill – final scrutiny

Posted on 25 April 2023

The House of Lords has begun its line-by-line scrutiny of The Online Safety Bill, including multiple proposed amendments. Although we expect the foundations to stand, there are big questions to be settled and potentially significant changes ahead. Here are five areas to keep an eye on:

  1. Illegal content
    There remain concerns that the threshold for illegal content has been set too low. As drafted, providers must act where they have "reasonable grounds to infer" that content is illegal, based on all the information reasonably available. But, particularly where platforms are monitoring in real time, judging illegality based on content alone will, say critics like lawyer and author Graham Smith, lead to arbitrary decisions and, ultimately, over-removal. The bar should instead be raised, he argues, to "clearly or manifestly illegal".
  2. The Triple Shield in relation to content harmful to adults
    We have previously warned that removing the "harms to adults" duty will leave too much in the hands of platforms, leaving vulnerable adults, especially, exposed to content that falls just short of criminal. Similarly, Carnegie UK and others support amendments to reintroduce risk assessments in relation to such harms, to require user empowerment tools to be “on” by default, and to set minimum standards for terms of service. This would prevent platforms from diluting existing terms simply to avoid engaging with difficult decisions, and enforcement.
  3. Senior management liability
    To avoid a backbench rebellion, the Government at the January report stage agreed to support an amendment to impose criminal liability on senior managers where they have “consented or connived in ignoring enforceable requirements, risking serious harm to children". As we outlined in more depth here, although we do not expect Ofcom to focus on enforcement against individuals, businesses should be aware of the extent of personal liability, including the broad definition of "officer".
  4. End-to-end encryption
    WhatsApp, Signal and five other messaging services have signed an open letter warning that the Bill, which requires providers to instal "accredited technology" capable of piercing encrypted communications in order to tackle illegal content, would effectively kill end-to-end encryption, undermining UK users' privacy and security. Without further amendments, WhatsApp and Signal have threatened to quit the UK market. Although the Government insists the Bill "in no way" represents a ban on encryption, critics say that even targeted surveillance – scanning only certain messages – is dangerous, and open to serious mission creep. As Matthew Lesh, Director of Public Policy and Communications at the Institute of Economic Affairs, argued in The Spectator: "just as one can’t be half pregnant, something can’t be half encrypted. Once a service starts reading messages for any purpose the entire premise of encryption disappears."
  5. Powers granted to the Secretary of State
    Conservative peer and Chair of the Lords Digital and Communications Committee Baroness Tina Stowell has said there is “strong support across the House” for some of the changes she has proposed to limit the powers granted to Secretary of State, which it is feared would undermine Ofcom's independence and capacity to hold tech companies to account. She has tabled several amendments, including to remove the Secretary of State's powers to direct Ofcom on a draft code of practice and give wide-ranging guidance to Ofcom on its functions under the Bill. Similar amendments were tabled at the Commons committee stage, but rejected by the Government.

Ofcom guidance on risk assessments

Meanwhile, Ofcom has outlined its planned approach to risk assessments, with further guidance to follow. In short, it is encouraging in-scope businesses to follow a four-step model: establish the context i.e. risks of harm; assess the risks and existing mitigating measures; identify and implement any new measures; and review those measures regularly.

For more information, including our previous instalments, visit our Online Safety Bill Hub. To receive further updates as the Bill progresses, please sign-up to our Online Safety Bill mailing list.

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