Wilf Stevenson on the belated but welcome arrival of the Online Safety Bill to the House of Lords, and the need to ensure the final legislation is fit purpose
It is hard to think of any other government legislation, central to a recent manifesto, and with broad all-party support, taking nearly six years from initial stages to consideration in the House of Lords.
Part of the problem with the Online Safety Bill has been the seven changes in Culture Secretary since the original Green Paper of October 2017. But equally, it is fair to say that the Bill has been strengthened by the extended consultation period, and the detailed pre-legislative scrutiny carried out last summer by the Joint Committee of both Houses of Parliament.
The focus of this long and complex bill is about reducing the seemingly ever-increasing harms caused by social media services and search engines. Online platforms have become central to our day-to-day lives. Their algorithms generate detailed pictures of who we are, pushing us towards certain types of content, even if that could have impacts on our physical and mental health. We have seen this in the case of Molly Russell, who tragically took her own life after being bombarded by material relating to depression, self-harm, and suicide. Many platforms have upped their game, but there remain too many cases of children and vulnerable adults being exposed to digital content that is simply not appropriate.
The Bill imposes duties of care on regulated social media platforms and other digital services and appoints OFCOM as the independent regulator, with significant powers to sanction companies who do not comply with their duties. The regulatory regime is risk-based. Regulated services are required to carry out assessments relating to illegal content and content harmful to children. And where they identify harm arising from those types of content and/or the operation of their service, they must put in place effective and proportionate risk mitigation plans, making it clear in their Terms of Service how they will achieve that. All regulated services are required to take down illegal content while at the same time take account of rights to freedom of expression and privacy.
As is often the case with the current government, the Bill provides a skeleton or framework. Much of its detail requires secondary legislation to be enacted after Royal Assent, along with a series of codes of practice and guidance for online platforms to follow. OFCOM’s recent roadmap indicated that this regime will not be fully in place until 2025, but that was before a summer of political turmoil and a fundamental rewriting of the legislation. Such delays will see many more children and vulnerable people exposed to harmful content.
Labour has made it clear that we support the Bill and want it on the statute book as soon as possible. But there remain concerns about some aspects of the legislation, exacerbated by the fact that several concessions were announced during the final Commons stages. As a result, certain key areas, including senior managerial criminal liability, preventing cyber-flashing, criminalising deepfake pornography, and tackling misogyny and violence against women and girls, will be subject to government amendments that we have yet to see.
Peers have received a lot of briefing on the Bill, and following on from the good work done by our Commons colleagues, we will focus on strengthening the independence of OFCOM; introducing statutory cooperation between OFCOM and other digital regulators; the role of Parliament in approving Codes of Practice; extending the regime to restrict fraud on line; introducing an Online Safety Ombudsman Service; and tackling Misinformation and Disinformation, while protecting quality journalism that is in the public interest.
All these issues – and more – enjoy support from across the Lords and Ministers would do well to take our concerns on board. If they do, an ambitious and vitally important piece of legislation could have Royal Assent before the summer. However, should the government resist sensible changes, opting for a sub-par regime which exposes people to unnecessary harm, the next Labour government will bring forward its own measures.
Lord Wilf Stevenson of Balmacara is a Shadow DCMS Minister
Published 30th January 2023