Online Safety Bill is a moment in history – it must be strong and well-crafted
Danny Stone, Chief Executive of the Antisemitism Policy Trust, analyses the important but imperfect Online Safety Bill, a draft of which is published by the Government today.
ANALYSIS: This article will appear on the internet. Jewish News may well post it on social media. On a bad day, anonymous individuals will jump on the message, signposting others and the resultant hate will span pages. Jewish News, you, or I, would need to go through and report the abuse, and if change came it would likely take a long time.
The UK Government’s draft Online Safety Bill seeks to redress the balance, putting the onus on platforms and their systems, rather than users. The Bill is complex at present, covering different types of service and applying different duties on the platforms to protect people from harm.
It is for this reason, and others, that the draft Bill was tabled for scrutiny by a Joint Committee of Parliament (constituting members from both Houses of Commons and Lords) which has probed, digested and today published a nearly 200-page report with recommendations to improve the Bill. The report has already been welcomed by numerous civil society groups, and though I have only read it the once so far, I can say that the Committee has done an outstanding job of listening and considering the issues, and that its members and chair, Damian Collins MP, should be congratulated.
The Pre-Legislative Scrutiny Committee (PLS) report is detailed and thorough. It describes the journey to this point, passing policy papers and rounds of consultation on the way. It also sets the context for action, with descriptions of the harms occurring throughout the digital world. The summary, and first conclusion is that self-regulation has failed, and that Government must act.
Discussion of how Government should act forms the substance of the report. The Committee believes that the Bill should start, and have at its core, objectives for online safety. It does not believe the current objectives are clear or strong enough.
The Committee thinks the Bill should set Ofcom’s agenda, the regulator will then write guides for social media companies and others to follow
If well designed, from these objectives, everything else would flow – the direction of travel for the regulator, Ofcom, public expectations – both in relation to combatting harms and protecting freedoms, and certainty for the companies as regards what they must do. In simple terms, the Committee thinks the Bill should set Ofcom’s agenda, the regulator will then write guides for social media companies and others to follow, and the companies will be required to act, and then judged on their compliance.
The centrepiece of this compliance will be assessing for risk, and the focus of the assessment is on systems. The whole Bill, and indeed legislation across the world, is moving from a focus on content, to a focus on the systems that deliver that content. The Committee’s report seeks to underline this approach, using the example that systems which help a joke to go viral, can also allow vaccine conspiracism, or indeed antisemitism, to do so too. The Committee therefore recommends companies be compelled to address the risk of ‘reasonably foreseeable harms’ occurring through the systems they operate.
Action to address antisemitism is apparent in various elements of the draft Bill, and in the Committee’s report on it. Significant thought has been put into the area of addressing ‘legal but harmful’ content. For example, Holocaust denial is not technically illegal, but has been prosecuted under offences linked to stirring up racial hatred and grossly offensive communications. We know it is harmful. The Committee here has tried to ensure that more content can be clearly determined as illegal, through the adoption of recommendations by the Law Commission to our Communications and Hate Crime Offences, but also to come to a more societal view of legal harms, leaning on the Equality Act and Hate Crime laws to guide that understanding.
The Committee also calls on the Bill to include text on anonymity, something we and others have been calling for. The Committee has tried to balance the importance of anonymity to some users with the harm that we know is spread by anonymous accounts.
There is much to welcome, including explicit protection for whistle-blowers, improved access for researchers
The result is a focus on the lack of traceability by law enforcement, the frictionless creation and disposal of accounts at scale, and a lack of user control over the types of accounts we can engage with. The Committee’s suggestion is that a specific risk assessment be conducted, and that Ofcom require specific systems to meet these risks.
Happily, there are numerous other areas where we have called for action and the Committee has listened and concurred. For example, the Committee saw the risk of small size but high harm platforms, and search services like Google, being given exemptions from acting against abuse. It has also been clear that there must be criminal penalties for senior executives of companies failing to follow the rules.
Space does not allow a full review of the report but there is much to welcome, including: explicit protection for whistle-blowers, improved access for researchers, action to improve age assurance systems and protections for children online, money and minimum standards for media literacy programmes, and restrictions on the Secretary of State’s powers.
There are areas in which we still have concerns. For example, whilst I am pleased the Committee identified that bad actors could exploit exemptions intended for news publishers, I am yet to be assured that a solution has been found.
Two particularly good pieces of news from the PLS Committee report are that its members don’t wish to abdicate responsibility, and so are recommending an oversight committee from both Houses be established, and that they see the gap in the public’s ability to act, and so have recommended an Ombudsman service and the establishment of a civil litigation route so that people can challenge in court breaches of the Bill. The public-facing complaints route has long been missing, and Government would be wise to listen to the Committee on this.
The Bill, and this report, are huge in size but also in importance. I don’t think I am overstating the case by suggesting that this is a moment in history, and what begins with this Bill will mark a shift in approach for the generations that come after us. The Bill must be strong, and well crafted. The Parliamentary Joint Committee report, if heeded, will ensure that it is. The Antisemitism Policy Trust will continue to play our part in ensuring that action to address anti-Jewish racism remains a key consideration, and I hope readers will speak with their MPs and do their part too.
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