The Online Safety Bill is due to return to the House of Commons for report stage on 5 December. The government has announced a series of changes to it, including:
- legal but harmful provisions to be replaced with new duties to enhance free speech and increase accountability of tech firms; and
- measures to be added to protect women and girls from controlling or coercive behaviour.
The Online Safety Bill as drafted caused significant concern amongst free speech groups and members of the public, who argued that changes were necessary to ensure that legal free speech was not curtailed by creating a quasi-legal category of speech online. Therefore, the legal but harmful measures will not be replaced with new duties which aim to strengthen the Bill’s free speech requirements on major online platforms to make them more accountable for their policies. It will explicitly prohibit them from removing or restricting user-generated content, or suspending or banning users, where this does not breach their terms of service or the law. In addition, platforms will need to have clear, easy to understand and consistently enforced terms of service.
The Bill’s provisions aim to provide adults with greater control over online posts they may not wish to see on platforms. If users are likely to encounter certain types of content – such as the glorification of eating disorders, racism, anti-semitism or misogyny not meeting the criminal threshold – internet companies will have to offer adults tools to help them avoid it. These could include human moderation, blocking content flagged by other users (presumably only if such content is in breach of the criminal law or the platform’s terms) or sensitivity and warning screens.
As well as making larger tech companies publish a summary of their risk assessments concerning the dangers their platforms pose to children, other moves to boost transparency and accountability include giving Ofcom a new power to require platforms to publish details of enforcement action it takes against them. The government says that the strongest protections in the Bill are for children. Companies in scope will need to protect young people from content and activity posing a material risk of significant harm. This includes taking preventative measures to tackle offences such as child sexual exploitation and abuse. A further amendment will make platforms’ responsibilities to provide age-appropriate protections for children clearer. Where platforms specify a minimum age for users, they will now have to clearly set out and explain in their terms of service the measures they use to enforce this, such as age verification technology.
Another set of amendments aim to boost protections for women and girls online by adding the criminal offence of controlling or coercive behaviour to the list of priority offences in the Bill. This means platforms will have to take proactive steps, such as putting in measures to allow users to manage who can interact with them or their content, instead of only responding when this illegal content is flagged to them through complaints.
The Digital Secretary has decided to remove the proposed harmful communications offence from the Bill to ensure the Bill’s measures are proportionate and do not unduly criminalise content that some may find offensive. The other new offences on false and threatening communications will remain in the Bill. The false communications offence aims to protect individuals from any communications where the sender intended to cause harm by sending something knowingly false, while the threatening communications offence will capture communications which convey a threat of serious harm, such as grievous bodily harm or rape.
In addition, the government will be taking forward proposals from the Law Commission of England and Wales. It carried out a review of laws on intimate image abuse and published its report earlier this year. The UK government has now announced that it will implement the Law Commission’s recommendations to strengthen the law to protect victims of intimate image abuse. In the immediate term, it will put forward an amendment to the Online Safety Bill, which would criminalise the sharing of a person’s intimate images without their consent. The amendment to the Online Safety Bill will broaden the scope of current intimate image offences.
In addition, the government’s plans include:
- Repealing and replacing current legislation with new offences to simplify the law and make it easier to prosecute cases. This includes a new base offence of sharing an intimate image without consent and two more serious offences based on intent to cause humiliation, alarm, or distress and for obtaining sexual gratification.
- Creation of two specific offences for threatening to share and installing equipment to enable images to be taken.
- Criminalising the non-consensual sharing of manufactured intimate images (more commonly known as deepfakes).
The move builds on a previous amendment to the Online Safety Bill to create an offence specifically targeting a ‘cyberflashing’. The government has also confirmed it will use the Online Safety Bill to create a new criminal offence of assisting or encouraging self-harm online (although it does not define self-harm and those sharing such content are often not in the UK).
The government statement does not mention encryption, which has been the subject of some concerns with commentators saying that the Bill lacks essential safeguards on surveillance powers that mean, without further amendment, it is likely to breach the European Convention on Human Rights, so it may be the subject of a later amendment.
