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The Online Safety Bill – what next?

Posted on 27 October 2022

As we wait for the Online Safety Bill to return to Parliament, we take this opportunity to launch our regular digest of the latest developments and our views on what may lie ahead. We will flag Mishcon's own coverage, as well as commentary from other experts and interested parties. Our aim is not just to keep you informed, but also to allow you – as the Bill takes shape – to plan for changes that could have far-reaching consequences, for internet users as well as the 25,000-odd businesses currently in scope.

Anyone with an interest in internet safety – in fact, anyone who interacts or trades online - should be watching the Online Safety Bill, which was due to return Parliament on 1 November 2022, but which has just been delayed for a second time. The current DCMS Secretary of State, Michelle Donelan, and Damian Collins, Tech and Digital Minister, have said it may need a few "tweaks". The question is: just how much editing is needed?

It is a landmark bill, promising new accountability and oversight for businesses that expose people, particularly children, to online harms. There is a growing consensus here and abroad (see California's move to ensure enhanced privacy protections for children) that much more needs to be done to protect underage and otherwise vulnerable users from obvious harms, such as content relating to terrorism and child sexual abuse. More recently of course, we have heard at the inquest into the death of Molly Russell, aged 14, appalling evidence of the content she was exposed to before she took her life. In a damning, unprecedented verdict, the coroner concluded that she died, in part, from "the negative effects of online content". He went on to call specifically for better oversight of platforms' algorithms, and tougher regulation.

There is however no consensus that the Bill takes the right approach. Criticism has been levied from two main camps: those who fear the impact on free speech, and those who want the Bill to go further. No internet regulation can fail to affect free speech. It is, by definition, a check on speech in the same way that libel laws threaten consequences for those who cause serious reputational harm without good reason (the statements are true, for example, or publication is in the public interest). The challenge is always to agree what speech can be censored and punished, and how; who decides what is acceptable; and – importantly – how, if at all, does online speech differ from offline?

Some have even called for a total rewrite - most recently human rights lawyer Dr Susie Alegre, who says it fails to tackle the root causes of online harm, including the systems and design features that recommend content to users. As Hugo Rifkind recently argued in The Times, on similar lines, the real tech crime is the "relentless monetising of craving, consumption and constant absorption".

How might the Bill change?

It seems likely that the protections for children will be strengthened. At the same time, Ms Donelan and her team have suggested they will look again at provisions to make the highest-reach, highest-risk businesses (Facebook, Twitter etc.) monitor content that is legal, but otherwise "harmful" to adults - dubbed "lawful but awful" - such as the promotion of self-harm and anorexia. These provisions have been as much defended, including by five former DCMS Secretaries of State in an op-ed for The Telegraph, as criticised.

Former Supreme Court Judge Jonathan Sumption, writing in The Spectator, has warned of the Bill's "hidden harms", in particular that "harm" is defined in "circular language of stratospheric vagueness". He fears that algorithms, tasked with moderating content, will err on the side of caution, privileging the "anodyne, the uncontroversial, the conventional and the officially approved" at the expense of facts and opinions that are always provisional, and must be openly examined to advance human knowledge.

Likewise The Times, a "recognised news publisher" whose own content will be protected under the Bill whether published on its website or shared on social media, has expressed concern that "regulatory overkill will strangle press freedom and democratic debate".

There appears one point on which most people agree; that the Bill needs more clarity.

Thank you for reading the first installment, there will be more soon. In the meantime, you can find our joint submission on behalf of SPITE victims, our overview of the businesses who will be (potentially) in scope, and our discussion around the tricky issue of anonymity, as well as an outline by Professor Lorna Woods, Professor of Internet Law at the University of Essex and a member of the Human Rights Centre. (Also on the panel discussion on The Online Safety Bill: will it make the UK the "safest place in the world to be online?).

For more information, visit our Online Safety Bill Hub.

If you have any feedback or questions, do let us know.

To receive further updates as the Bill progresses, please sign-up to our Online Safety Bill mailing list.

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