Online Safety Bill: why has it been delayed?
Antony O’Loughlin finds out why the Online Safety Bill has been years in the making – and examines the potential impact of this controversial legislation.
The Online Safety Bill — drafted with the intention of improving internet safety — is still yet to come into effect after around six years. The origins of the bill can be traced all the way back to 2017’s Internet Safety Strategy Green Paper, which sought to introduce extra checks and balances on potentially harmful online content.
Despite the green paper evolving into the Online Safety Bill — which was published as a draft in May 2021 — it still hasn’t been passed into law. Dogged by all manner of issues, here we’ll explore why the Online Safety Bill remains in a state of limbo and what the impact of this is.
Firstly though, what exactly does the bill entail?
What is the Online Safety Bill?
The Online Safety Bill is proposed legislation aimed at setting the standard in the regulation of safety and protection of vulnerable people online.
The bill seeks to protect internet users from online harms, such as child grooming, sharing of sexual abuse imagery, harassment and self-harm content, with government guidance stating it will safeguard children by making social media platforms:
- Remove illegal content quickly or prevent it from appearing in the first place. This includes removing content promoting self-harm.
- Prevent children from accessing harmful and age-inappropriate content.
- Enforce age limits and age-checking measures.
- Ensure the risks and dangers posed to children on the largest social media platforms are more transparent, including by publishing risk assessments.
- Provide parents and children with clear and accessible ways to report problems online when they do arise.
The bill will also protect adults in three ways through a ‘triple shield’. Platforms will need to:
- Remove all illegal content.
- Remove content that is banned by their own terms and conditions.
- Empower adult internet users with tools so that they can tailor the type of content they see and avoid potentially harmful content if they do not want to view it on their feeds. Children will be automatically prevented from seeing this content without having to change any settings.
What are the pros and cons of the Online Safety Bill?
The pros
Protection for users: The Online Safety Bill aims to protect users, especially children and vulnerable individuals, from harmful content, cyberbullying, harassment, and other online threats. This is understandably in the public interest, with four in five people actually wanting the bill to go further in protecting children’s interests and safety by creating an independent advocacy body to help ensure their voices are heard by the regulator Ofcom. As NSPCC chief executive Sir Peter Wanless states, this “will give a powerful voice to the experiences of children and act as an early warning system that embeds a focus on prevention into decision making.”
Prevention of illegal and harmful content: The internet is awash with illegal and harmful content. For instance, according to a report by Ofcom, two thirds of young people have come across at least one potentially harmful piece of content online in recent times. Under the Online Safety Bill, however, social media platforms will be forced to remove illegal content, preventing children and adults from seeing it. Meanwhile, these platforms will also need to protect children from harmful content through measures such as keeping them off these platforms and giving parents powers to reduce the likelihood that they will encounter such content.
Accountability for tech companies: The Online Safety Bill requires tech companies to take responsibility for the content on their platforms. Under the proposals, Ofcom will have powers to take action against platforms that fail to prevent harmful content, with measures including:
- Fines of up to £18 million or 10 per cent of their annual global turnover, whichever is greater.
- Criminal charges against culpable individuals.
- Preventing payment providers, advertisers and internet service providers from working with the platforms in question.
All in all, this requirement will probably lead to faster response times in addressing harmful content and greater accountability for maintaining safer online environments.
Transparency: By mandating increased transparency from online platforms regarding their content moderation practices, privacy policies, and data handling, the bill will help users make more informed choices. For example, the new laws will force social media platforms to publish risk assessments that outline the exact risks and dangers posed to children on their platforms. As Ofcom explains: “We expect this to explain what content they’re required to focus on, how harmful content might appear on their services, and good risk management practice as a fundamental part of service design and organisational culture.”
The cons
Freedom of speech concerns: The Online Safety Bill has been heavily criticised for its potential impact on freedom of speech. In particular, the proposals to ban content before it is even published or posted has attracted much ire. As a briefing by EFF, Open Rights Group, Wikimedia UK, and Index on Censorship states: “Put simply, as the user begins to upload their content, the system would sweep in and check it out, and potentially remove it before it has been communicated. This is a modern, 21st century form of prior restraint.”
Privacy and security issues: Similarly, the Online Safety Bill has been condemned on privacy and safety grounds — especially its provision for “routine monitoring” of user communications in order to prevent harmful content from appearing on messaging services. This potentially jeopardises end-to-end encryption, which is a key way of maintaining privacy and ensuring security when using online platforms. As a result of this measure, almost 70 IT security and privacy academics wrote an open letter to the UK government urging it to amend the legislation.
Excessive government oversight: The bill would grant powers to the Secretary of State to give guidance to Ofcom, the media regulator, on the exercise of its functions, and even powers to direct it to target individual companies. Consequently, fears have been raised around excessive government interference. As Carnegie UK puts it: “Ofcom’s independence in day-to-day decision making is paramount to preserving freedom of expression. Independence of media regulators is the norm in developed democracies and the UK has signed up to many international statements in this vein. The government has without justification given itself powers to give Ofcom direction on non-strategic matters.”
International impact: Critics have argued that, because the regulations are too strict and unique to the UK, they will conflict with the practices and laws of other countries, causing complications for global platforms. For instance, fears have been raised that Wikipedia could be forced to shut down in the UK, with concerns that the content moderation requirements will be too onerous for a platform designed to provide such a breadth of public information. There are also fears that WhatsApp could leave the country owing to the bill’s weakening of the platform’s end-to-end encryption system.
What has caused the delays to the Online Safety Bill?
The bill has undergone significant amendment and reworking during its legislative history, and has become far larger (and more unwieldy) than its initial iteration. This is the broad explanation for its long delay, though there are more specific factors we can point to that further shine a light on the situation.
Opposition to the bill
Many of the bill’s shortcomings have naturally resulted in significant opposition, leading to several modifications that have delayed the Online Safety Bill coming into law.
For example, in November 2022, measures that were intended to mandate big technology platforms to remove "legal but harmful" content were withdrawn from the Online Safety Bill. Instead, the bill was amended to make these companies introduce systems that better enable users to filter out the harmful content they do not wish to see.
Meanwhile, in response to concerns that people’s access to news would be compromised by the bill, a requirement on Category 1 services to notify a recognised news publisher and offer a right of appeal before taking action against its account or content’ was introduced.
Political problems
British politics has been extremely turbulent over the past few years, and this has also contributed to the Online Safety Bill’s hold up.
Since the Safety Strategy Green Paper during Theresa May’s premiership in 2017, we have seen three more prime ministers, all of whom have formed governments with varying views on the Online Safety Bill. For instance, Liz Truss’s government was characterised by a libertarian approach which tended to place individual liberty and commercial freedom above other interests. This led to the likes of trade secretary Kemi Badenoch criticising the bill and further amendments being made.
Political viewpoints haven’t been the only impediment stemming from Westminster though. The last few years have also seen lengthy breaks and delays in Parliament due to elections and the Covid-19 pandemic. These aspects have also contributed to the Online Safety Bill being constantly put on the back burner.
The Molly Russell case
Following the death of schoolgirl Molly Russell, who tragically took her own life after viewing harmful social media content, the Online Safety Bill was further amended to criminalise content encouraging self-harm.
“The proposal to introduce a new criminal offence of 'encouraging self-harm' within the draft Online Safety Bill appears a significant move,” a spokesperson for The Molly Russell Foundation said.
“It not only criminalises those who do the encouraging, but also turns this activity into an illegal offence — which means that even if the harmful but legal clauses in the bill are removed or curtailed, such content would still be legislated against.”
While the amendment was certainly a welcome change to the proposed legislation, it has contributed to the delay of the bill becoming law.
What has the impact of the delays been?
Fine-tuned legislation
On one hand, the delay to the Online Safety Bill has allowed legislators to fine-tune it ahead of its passing into law. This can be seen by the many amendments that have been made, changes that have appeased parties on both sides, from freedom of speech activists to those looking to strengthen its safeguards, such as children’s protection charities.
A rise in online grooming cases
On the other hand, the hold up in the bill coming into effect has had serious negative consequences. The very reason for bringing the Online Safety Bill to the table is the current law’s inability to protect individuals — chiefly children — from harm online, and this ineffectiveness can be seen in the scale of child abuse happening on social media.
According to the NSPCC, around 34,000 online grooming crimes had been recorded by UK police forces since online safety laws were last updated. Citing data from 42 UK police forces, the charity reported that 6,350 offences related to sexual communication with a minor were recorded in 2022, a rise of 82 per cent since the offence was introduced in 2017-18.
As such, the longer the bill is delayed from being made into law, the longer children will fail to receive adequate protection online.
What does the future hold for the Online Safety Bill?
According to a government spokesman, the Online Safety Bill will become law in a matter of months, adding: “We’re working closely with Ofcom to make sure [protections for children] are enforced as soon as possible … and in the meantime, law enforcement has been working closely with social media platforms to bring perpetrators to justice for the abhorrent crimes that are committed online.”
It is expected that the law will come into effect at some point during the second half of 2023. That said, with the number of delays it has experienced thus far, it certainly wouldn’t be surprising if the Online Safety Bill was held up further. Ultimately, however, with the legitimate privacy, freedom of speech, and security concerns to consider, among others, it is right that legislators make sure that the bill is watertight and minimises harm on all fronts. For everybody’s sake, let’s hope that this moment comes sooner rather than later.
Antony O’Loughlin is director, head of litigation, and general counsel, Setfords
