The UK’s Online Safety Bill is perhaps best described as a well-intentioned but vexed piece of proposed legislation. It has been passed from one Prime Minister to another, and from one Digital Secretary to another, in a game of Parliamentary pass the parcel. Each politician rips off another layer, or adds one, or scribbles something on the wrapping without prior consultation. Hardly surprising when government itself is in a state of constant flux and upheaval.
What will be inside the parcel when it finally reaches the House? That is still being discussed. What’s certain is that few Bills offer as many insights into where we are as a society as this one, as it is debated by politicians, regulators, lawyers, ICT companies, charities, special interest groups, and many other stakeholders.
So, what are the key areas of alignment and disagreement?
First, everyone agrees that children need protecting online from criminals, groomers, abusers, pornographers, bullies, hate speech, and aggressive sales pitches. And sometimes from each other: explicit images are reportedly being made and shared by younger and younger people. But minors use countless platforms that are designed for adults too – they are YouTube’s biggest user base, for example – so should adults also be treated like children online because of fears over young people’s safety?
Most countries are at least debating this issue, and in some cases legislating. For example, the US state of California passed the Age-Appropriate Design Code Act this summer.
Other questions that people want the Bill to answer include: What about legal but harmful content? This might include forms of hate speech, but also news images of atrocities or human rights abuses, for example. The latter may be horrifying, but does that mean that people shouldn’t see them and learn about what is going on in the world? Should legal content be limited by law, beyond simply warning people about it?
Other issues being hotly debated include: should journalists be exempt, as the Bill suggests, when some tabloid journalism is no longer news, but rather clickbait opinion designed to whip up hatred and division online – sorry, ‘engagement’? And should safety rules extend to private spaces, such as encrypted chats?
Does anyone have the right to police private conversations? The instinctive answer is no. But equally, if chats are encrypted would security agencies no longer be able to trawl platforms for known images of abuse without weakening systems that the digital economy relies on? These are complex issues with a simple question at their heart: where do privacy and freedom of speech begin and end?
There are party-political dimensions here too: some contributors to the Bill have suggested that there should be a list of recognized news sources – an official definition of what is and isn’t journalism – a concept so open to error, abuse, and favouritism it would make a mockery of itself. In a related issue, some see the culture war against so-called ‘woke’ commentators (aka people with empathy) as little more than a smokescreen for rolling back legislation that protects minorities, while others see it as a sincere campaign to protect freedom of expression for those who are nostalgic for the 1970s.
In all of these cases and more, online safety risks becoming a party-political football. But whatever form it takes, it seems likely that the Bill, when it finally goes before Parliament, will underwhelm the most ardent safety campaigners, please those who feel powerless and want to be seen to act, and alarm just as many others.
Tweaks on the way
So, what’s the answer? Professor Sonia Livingstone is from the Department of Media and Communications at the London School of Economics and Political Science (the LSE). Giving the keynote at a Westminster eForum on the Bill this week, she said:
[Previously in the Bill] there was a lot of attention on media literacy. Many will be aware of how media literacy can be promoted as a regulatory strategy that can mitigate the need for tougher regulation on platforms. Do we regulate the platforms, or do we give the power to users [to make informed decisions]? Obviously, we want a way to do both, but it is notable that the latest version of the Bill does not have the chapter on media literacy that many people have campaigned for.
Why any government would remove a chapter on media literacy is open to question, as doing so calls into question the desire to make the UK “the safest place to go online”. Why does Downing Street want people to be less well informed?
This week, Prime Minister Liz Truss assured MPs that the Bill was still very much on her agenda (having previously been championed by former DCMS Secretary Nadine Dorries). But it would need “a few tweaks”, she said. (Coincidentally, Dorries’ Twitter account vanished this week, with some wags suggesting her combative online comments might have compromised the safety of her House of Lords chances – a multiple irony if true.)
That aside, Livingstone continued:
There has been in the last week or two quite some debate about the nature of those ‘tweaks’, and I think it's emerging that they might be considerable ones. So, the concern is whether this will dilute the Bill or weaken the powers of Ofcom and government in relation to it. Many are closely watching those questions.
But the aim of the tweaks, in a way, is to address what has been a very longstanding struggle within the media, and within the regulation of internet governance: the sense that there is an inherent opposition between protecting the vulnerable, and freedom of expression for everybody – but implicitly for those who are less vulnerable.
I know that many stakeholders concerned with this Bill have really been trying to change that discourse so that we don't end up with such an opposition. And of course, the vulnerable have freedom of expression rights as well. And everybody has their own vulnerabilities.
Some of the proposals in the middle, particularly about moving the emphasis from content regulation to systems regulation, have been very much designed to achieve that end, but whether that will be successful we have yet to see.
Tearing up human rights legislation
Livingstone – whose own research has long been on evidence-based policy and child protection – believes that, under Truss, the focus of the Bill may switch to keeping children safe online, rather than regulating what adults can legally do and say. This may have advantages – a simpler and more achievable aim, perhaps – but also unintended consequences.
My point is that children are whole people. They engage in many ways, but risk travels, and harm travels, it blurs online and offline, it's complex. So, one of the struggles of the Bill has always been to try to put neat lines around something which is humanly challenging. But evidence matters, and the evidence is mounting that there is a real problem [with child safety online].
[A switch from] addressing platforms that are likely to be accessed by children to only regulating those that deliberately target children would be a very significant constraint on the protections available for children – not to mention for adults also.
Children’s safety and privacy are among the areas protected under the UN Convention on the Rights of the Child, and are a core principle in human rights legislation generally. So, I asked Livingstone if she was concerned about the ‘mood music’ in recent months that the government plans to tear up human rights laws? Wouldn’t that run counter to the aims of the Bill, and create a climate of risk and fear for all vulnerable groups?
I am extremely concerned, though I do note that in initial reporting about Liz Truss’ proposals on the Bill of Rights, tearing up the Human Rights Act seems to be off the table. I'm not sure where that's going. But absolutely, [tearing it up] would be extraordinarily damaging.
Some of you will know I worked with the UN Committee on the Rights of the Child on preparing general comment 25 on children's rights in the digital environment. And to my mind that really does set out a very balanced, sensible, and actionable approach to children's rights in digital contexts.
An important area, and a Bill with sincere aims to protect the vulnerable. But also, one with so many stakeholders that we may end up with little more than a statement of intent with few actionable consequences for law breakers, beyond those that we already have.