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The Online Safety Bill: What next? The Digest

Posted on 19 January 2023

On 10 January, Emma Woollcott chaired a panel of experts considering the state and scope of the Online Safety Bill:

  • Partner and specialist in data protection and privacy, James Boyle;
  • Communications and Policy Director of the Online Dating Association, Hannah Shimko; and
  • Author and barrister, Jamie Susskind.

Below are the key talking points from their wide-ranging discussion.

An "incredibly ambitious" piece of legislation

The panellists agreed that the Bill is wide-ranging, inherently political, unenviable to deliver, but welcome. They summarised:

  • Even seven years ago, regulating the internet would have been seen by many as a heresy; no more. This is legislation of real constitutional stature, with global influence.
  • Children will undeniably be better protected online.
  • The new law will not only boost awareness of online harms, but encourage public complaints and campaigns that could be as effective as enforcing the law directly.

Parallels with other regimes

We can draw lessons from existing regimes, both here and abroad:

  • In practice, the Data Protection Impact Assessments introduced by the GDPR have had mixed success, not always prompting meaningful change.
  • Much of the Bill's impact, and its practical implications – including the costs of compliance - will depend on how the new regulator, OFCOM, flexes its considerable powers.
  • Businesses will have to be nimble, as they already are, in applying different rules in different territories.

Missed opportunities

All our panellists have concerns about the Bill and identified room for improvement:

  • James highlighted the threat to end-to-end encryption and adamant the position is not binary: you can monitor effectively while protecting users' privacy and without undermining security. He hopes the technology will evolve, as it has in electronic marketing, and that protections will soon be "baked in" to the relevant software, making compliance easier.
  • Hannah would like more guidance from Ofcom on the tension between minimising data, as required by the GDPR, and the use of data-heavy technology often needed for age assurance and age verification. Her members are also conscious that increased transparency, for example, sharing details of age verification procedures, could allow underage users to circumvent those controls.
  • Jamie believes that legislators have ducked the broader, moral question of how we should approach free speech online, when the scope for harm is clearly greater online than offline. Allowing platforms to set their own terms when it comes to tackling legal but harmful content also risks those terms being watered down. 

Society and systems

The panellists recognised the Bill is not a panacea:

  • The Bill's focus on user empowerment will benefit some – including those educated or engaged enough to opt in – but does not address social, as opposed to individual, harms, such as the existence and spread of anti-democratic content.
  • It focuses on removing harmful content, but does not prioritise promoting a safe and civil environment i.e. action based on ideals.
  • One cherished aspect of free speech that we want to preserve is choice: in dating, for example, the freedom and opportunity to meet others safely and privately.
  • Addressing online harms such as misogyny is also about tackling platforms' business models – which involves the commercial drive to move content to where it is most likely to be seen. Platforms have unprecedented power not just to block and ban content but to sort and order it, in other words, to shape our access and exposure to information. Whether we are able to appeal, as Jamie says, to the "better angels of their nature", remains to be seen.
  • There is a danger that having different terms of service i.e., different approaches to legal harms across different platforms, and more filtering, will lead to a more fragmented internet, with certain content simply migrating to smaller, less regulated platforms.

What next?

It is hard to predict what changes will emerge from the Bill's final passage through the Lords and, indeed, whether it survives at all. Though it will benefit from scrutiny by experts, there is limited Parliamentary time to shape the bill further.

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