With great power comes great responsibility and internet companies should be starting to appreciate and take more seriously the responsibilities they hold further to the publication of the report by the Joint Committee of the Houses of Commons and Lords on the Government's proposed draft Online Safety Bill of May 2021.

The Joint Committee report of the 14th December 2021 represents a rather large Sword of Damocles hanging above them.  

Background to the Growing Concerns About Life Online

For some considerable time and as the power of the internet has grown to become a powerful everyday tool in the modern life of all individuals. Critics, including individuals, parliament, academics, and children’s charities, have argued that self-regulation by internet companies is not enough to keep internet users safe and that statutory regulation should be introduced.

The Government Online Harms White Paper of April 2019 agreed and argued that existing regulatory and voluntary initiatives had “not gone far or fast enough” to keep users safe online and proposed a single regulatory framework to tackle a range of identified online harms. At its core the Government proposed that there should be a statutory duty of care for internet companies, including social media platforms and independent regulators to oversee and enforce compliance with that duty. The public consultation on the white paper proposals closed in July 2019 and it was clear that  there was a very mixed reaction from those that had responded to the White Paper. Children’s charities were positive about the Government proposals but some commentators on the White paper raised concerns that the harms envisaged by the White Paper were insufficiently defined to afford adequate protection. On the other hand the Open Rights Group and the Index on Censorship warned that the proposals could threaten freedom of expression.

An initial response to the consultation was published by the Government in February 2020 with the Government stating, among other things,  it was minded to make Ofcom the regulator for online harms. A further full response was then published by the Government in December 2020, whereupon the Government confirmed that a statutory duty of care would be introduced through an Online Safety Bill and that Ofcom would be the regulator.  The reaction to the Government's response continued to be mixed with some commentators continuing to argue that the legal framework proposed would threaten freedom of expression and privacy and with others continuing to raise concerns about the proposed definition of harm and whether or not it was sufficient to provide protection from online harm. 

Following the Government's response of December 2020 a draft Online Safety Bill was included in the Queen’s Speech of 11 May 2021 and published the following day, along with Explanatory Notes, an Impact Assessment and a Delegated Powers Memorandum.  In line with the Government’s December 2020 response to its Online Harms consultation, the draft Bill imposes duties of care on providers of online content-sharing platforms and search services. Ofcom would be responsible for enforcement of  compliance and its powers would include being able to fine companies up to £18 million or 10% of annual global turnover, whichever is higher, and have the power to block access to internet sites. The draft Bill proposed new law to make internet service providers responsible for what’s happening on their platforms, including for serious crimes like child abuse, fraud, racist abuse, promoting self harm and also against violence against women, for which previously there was little enforceable sanction.

A Joint Committee of both Houses was appointed on the 21st July 2021 in order to consider the published draft legislation and to report by 10 December 2021. During the course of its inquiry the committee heard evidence from victims of online harms including Molly Russell’s father, Sir Rio Ferdinand and Martin Lewis. Evidence was heard from Journalist Maria Ressa, who was awarded the 2021 Nobel Peace Prize jointly with Dmitry Muratov for "their efforts to safeguard freedom of expression, which is a precondition for democracy and lasting peace.”, as well as evidence from academics and experts; the big tech companies; Ofcom; Facebook whistleblowers Frances Haugen and Sophie Zhang; the Government, and after receiving hundreds of pages of written evidence. 

The Joint Committee Conclusions and Recommendations 

The Joint Committee report was published on the 14th of December 2021 and it is abundantly clear from its conclusions and recommendations that the committee do not consider that the Government’s draft Online Safety Bill goes far enough to protect and keep individuals safe from online harm. In Appendix 1, of the Joint Committee report , 13 case studies were produced of where evidence heard translated directly into improvements to the published draft Bill including online fraud, extreme porn, racist abuse, self-harm, cyberflashing, Zach’s law, deepfakes, misogyny, incitement to riot, protecting candidates, democratic elections and religious discrimination.

In its 191 page report the Joint Committee concluded that:

 

• Big tech has failed its chance to self-regulate. They must obey this new law and comply with Ofcom as the UK regulator, or face the sanctions.
• Ofcom should set the standards by which big tech will be held accountable. Their powers to investigate, audit and fine the companies should be increased;
• Ofcom should draw up mandatory Codes of Practice for internet service providers. For example, they should write a Code of Conduct on risk areas like Child Exploitation and terrorism. They should also be able to introduce additional Codes as new features or problem areas arise, so the legislation doesn’t become outdated as technology develops;
• Service providers should be required to conduct internal risk assessments to record reasonable foreseeable threats to user safety, including the potential harmful impact of algorithms, not just content;
• The new regulatory regime must contain robust protections for freedom of expression, including an automatic exemption for recognised news publishers, and acknowledge that journalism and public interest speech are fundamental to democracy;
• Scams and fraud generated in an aim to tackle harmful advertising such as scam adverts. Paid-for advertising should be covered by the Bill; and Service providers should be required to create an Online Safety Policy for users to agree with, similar to their terms of conditions of service;
• That the Bill need to be clearer about what is specifically illegal online and that it should not be up to the tech companies to determine this,

The Joint Committee also agreed with the Law Commissions recommendations that new criminal offences should be added to the Bill. The Law Commission recommendations were that;  

 

• Cyberflashing be made illegal;
• Deliberately sending flashing images to people with photosensitive epilepsy with the intention of inducing a seizure be made illegal (known as Zach’s law);
• Pornography sites will have legal duties to keep children off them regardless of whether they host user-to-user content; and 
• Content or activity promoting self-harm be made illegal, such as it already is for suicide;
• that individual users should be able to make complaints to an ombudsman when platforms fail to comply with the new law and that a senior manager at board level or reporting to the board should be designated the "Safety Controller." In that role they would be made liable for a new offence: the failure to comply with their obligations as regulated service providers when there is clear evidence of repeated and systemic failings that result in a significant risk of serious harm to users.

The view of the committee in their report appears to abundantly clear and is best expressed in the words of the Joint Committee Chair Damian Collins MP 

“The Committee were unanimous in their conclusion that we need to call time on the Wild West online. What’s illegal offline should be regulated online. For too long, big tech has gotten away with being the land of the lawless. A lack of regulation online has left too many people vulnerable to abuse, fraud, violence and in some cases even loss of life.

“The Committee has set out recommendations to bring more offences clearly within the scope of the Online Safety Bill, give Ofcom the power in law to set minimum safety standards for the services they will regulate, and to take enforcement action against companies if they don’t comply.

“The era of self-regulation for big tech has come to an end. The companies are clearly responsible for services they have designed and profit from, and need to be held to account for the decisions they make.”

The Next Steps….

The Joint Committee has been clear in its report that major and significant changes are required to the currently drafted Online Safety Bill in order to protect individuals from on line harm and that the inclusion of the Joint Committee recommendations “will be a huge step forward in keeping people safe online and protecting victims”. As set out in the Joint committee’s Enhanced Summary the recommendations of the committee can be summarised into 4 simple points 

1. What's illegal offline should be regulated online.
2. Ofcom should issue binding Codes of Practice.
3. New criminal offences are needed.
4. Keep children safe from accessing pornography.

The Government now has two months to respond to the report and recommended improvements before the draft Online Safety Bill goes before parliament in 2022.

If you want to read more about the work of the Joint Committee in detail take a look at the links below. 

• Draft Online Safety Bill: Report of Session 2021-22 (HTML)
• Draft Online Safety Bill: Report of Session 2021-22 (PDF)
• Draft Online Safety Bill: Enhanced summary
• Draft Online Safety Bill (Joint Committee)