The Future of the Online Safety Bill

By Jack Mathias
10/10/2022

Given a chaotic first month to her premiership, Prime Minister Liz Truss will be eager to reshape domestic policy in her image, starting with the catalogue of yet-to-be enacted pieces of legislation handed down by her predecessor. None are without their controversies. 

The Online Safety Bill (OSB), the vehicle DCMS says will make “the UK the safest place in the world to be online” will stand as a priority. Though noble, it seems both a theoretical and practical impossibility, given that the intention of the Bill is to radically upscale the monitoring and removal of harmful online content, whilst ensuring users retain the rights of expression, free speech and privacy. It intends to do this by placing a much larger onus on Big Tech to ensure that content the Government deems unfit for online consumption does not spread across its platforms, with hefty fines - measured against a company’s global profit margins - the stick to be wielded by a beefed-up Ofcom.

Ever since its initial publishing last year, the OSB has proved to be a source of division both within parliament and beyond. Despite how wide-ranging this piece of legislation is – or even partly because of this – debates have almost exclusively centred around the fact that that Category 1 organisations, the largest tech platforms such as Facebook, Google, Twitter and TikTok, will be obliged to set out how they will deal with unsubstantiated “legal but harmful” online content, much of which currently proliferates freely through its services.

Digital rights organisations like Open Rights Group, as well as high-profile political figures including former Brexit Secretary David Davis and Iain Duncan Smith, have voiced concern that this will lead to Big Tech erring on the side of caution, removing content otherwise seen as acceptable for users to consume. It is this possible ramification that will serve to erode one’s right to expression and free speech, they say, while the necessary monitoring of content is also cited as a threat to privacy. Silicon Valley doesn’t seem too happy about the prospect of taking up more proactive roles either, with Will Cathcart, Head of encryption service WhatsApp, emphasising “We don’t have to take the huge hit to people’s safety and fundamental rights to go monitor all their communications”. Within this broad church of libertarian MPs, campaigning groups and Big Tech, the OSB is seen as an outright attack on rights of the individual.

Those on the other side of the argument, meanwhile, would point to the fact that such rights cannot be wholly protected in any context – online or offline - but instead valued in proportion to wider concerns, such as safety. From this notion comes the common accusation that Big Tech has overseen a lawless and unregulated space for too long and, as such, need to be held more accountable for the material shared on its platforms. 

Those calls were accentuated at the end of last month, as a recent inquest into the death of 14-year-old Molly Russell concluded it was “an act of self-harm while suffering from depression and the negative effects of online content”. This prompted the children’s charities of the NSPCC and 5Rights Foundation to declare the Bill “is needed now” while, somewhat less expectedly, Prince William made a rare public comment that online safety “needs to be a prerequisite, not an afterthought”. The inquest, which will sit alongside growing evidence linking social media to mental health problems among young people, puts into sharp focus a potential disparity between Big Tech and the Government in what content should be removed from online platforms; though the answer to this question is essentially subjective, there is an argument that the Government, which has democratic accountability, is a more suitable entity in figuring this out.

A glance into the OSB’s development, meanwhile, would reveal that it has been on the Conservatives’ to-do list since 2017, reflecting a well-established belief that the online space cannot be left to self-regulate. Indeed, it is one of few notions that traverses the lines of party politics, with the Labour party’s line of attack merely concerning its delayed introduction to the House of Commons.

It is from such competing desires, then, that a compromise option seems to have been decided upon by the new Government.  The new Secretary of State for DCMS Michelle Donelan, succeeding ‘Britain’s Big Tech slayer’ Nadine Dorries, confirmed there was “a rebalancing that needs to be done… in terms of freedom of speech, and freedom of expression for adults”, words which we can interpret as a confirmation of the ‘legal but harmful’ provision being scrapped. This will no doubt be met with dismay largely from those prioritising safety in the governance of the online space - like the NSPCC’s Andy Burrows, who recently warned that such a decision “will create loopholes”. And yet, it is also true that this alteration will make the Bill’s legislative progression somewhat of a smoother process, especially given just how much the Conservatives’ internal opposition has centred their arguments around this specific provision. The result will be a comprehensive - though markedly softer - set of regulations that, while now much more likely to become law, can no longer be deemed a “world-first”.