UK Online Safety Bill rethink urged

Technology law experts David Barker and Meghan Higgins of Pinsent Masons said the focus of the current version of the Online Safety Bill before the UK parliament has become too broad, that its provisions are complex and difficult to interpret, and that there is a risk that the finalised legislation will not address the primary purpose originally envisaged.

The Online Safety Bill was introduced into parliament last year. The Bill is wide-ranging and would, if given effect in its current form, impose extensive obligations on online services providers regarding both illegal and harmful content that appears on their platforms. Experts at Pinsent Masons have previously expressed concern that the aims of the Bill – to reduce online harms – could be undermined by a lack of clarity over the way the legislation is to be implemented and enforced.

Earlier this week, the Bill passed through the report stage in the House of Commons and was read for the first time in the House of Lords. A second reading in the Lords is scheduled to take place on 1 February.

The Bill only passed through the report stage after the government made some concessions to rebel MPs, including around senior manager liability provisions in the Bill. The MPs had tabled an amendment ‘NC2’ to the Bill seeking an extension of senior manager liability provisions already in the draft legislation. The amendment envisaged senior manager liability for a breach of child safety duties and that courts would gain the power to sentence senior managers to up to two years in prison for such a breach. This marked a significant development because senior manager liability in the bill was previously tied to failure to comply with notices issued by Ofcom.

Following talks between culture secretary Michelle Donelan and some of the rebels, the amendment was dropped, with the government committing to incorporate a revised version of the proposals in the Bill as it passes through the Lords.

Donelan has said that the government intends to provide for senior manager’s criminal liability for a breach of child safety duties only if the online service provider has first failed to comply with a notice from regulator Ofcom to bring its non-compliance with the duties to an end. The envisaged approach is modelled on the framework for criminal liability that exists under the Irish Online Safety and Media Regulation Act (2022), she said.

Rebels pushed for the Bill to provide for potential prison sentences for senior managers for breaches of child safety duties after arguing that regulator Ofcom’s enforcement powers under the draft legislation would be toothless without such a threat. The rebels said their amendment simply reflected the types of liability senior managers in other sectors, such as construction and financial services, already face.

However, others have expressed concern about extending senior manager liability for a breach of child safety duties, with fears that this will simply result in fewer online services being made available to children or some service providers choosing to withdraw from the UK market altogether. Other concerns centre on a perceived lack of clarity over the proposed new offences, particularly as the underlying child safety duties are at a level of principle and no guidance on these duties has yet been issued by Ofcom.

Ofcom recently issued a call for evidence focused on the protection of children online. It is accepting written responses until 5pm on 21 March 2023.

The senior manager liability provisions were just one area of the Bill that was subject to debate in recent days. Other amendments relate to legal but harmful content, the application of providers’ terms of service, and the treatment of third-party news content published on online services providers’ platforms. The government has set out its views on the anticipated impact of the changes proposed. The package is just the latest in a series of amendments that have been made to the Bill since it was introduced into parliament.

“The approach to the senior manager liability provision amendments reflects the nature of how this Bill has evolved more generally as it has made its way through parliament,” said Meghan Higgins of Pinsent Masons. “Uncertainty around the Bill persists, and the complexity of the provisions threatens the effectiveness of a really important piece of legislation.”

“The Bill suffers from trying to achieve too many things for too many people, at the expense of clarity and workability – it now resembles patchwork legislation”, she said.

“Some amendments – such as those proposed with the new senior manager liability provisions –disproportionately strengthen measures that were in earlier versions of the Bill. Others stretch the scope of the Bill and move it further away from what it was originally intended to be – the latest example of this being the plans Donelan has announced to introduce a new priority offence to prevent illegal immigration – which would require service providers to remove content that could be seen to promote illegal immigration in a positive light – and further provisions targeting content relating to conversion therapy,” Higgins said.

Barker said: “There has been a lot of debate about the subjectivity of many provisions in the previous iterations of the Bill. The incorporation of an offence around presenting illegal immigration in a positive light is the latest and most stark example of this. The UK government should re-evaluate the purpose, scope and contents of the Bill at this crucial stage in the parliamentary process.”