Analysis of the Online Safety Bill

The Online Safety Bill (PDF) [Bill 285 2021-22] was introduced in the House of Commons on 17 March 2022. Second reading is scheduled for 19 April 2022.

The Government has said the Bill delivers its “manifesto commitment to make the UK the safest place in the world to be online while defending free expression”. The Bill has five policy objectives:

• to increase user safety online.
• to preserve and enhance freedom of speech online.
• to improve law enforcement’s ability to tackle illegal content online.
• to improve users’ ability to keep themselves safe online.
• to improve society’s understanding of the harm landscape.

What does the Online Safety Bill do?

The Bill would impose duties on “regulated services” (user-to-user services which share user-generated content (eg Facebook) and search services (eg Google) with “links” to the UK) in relation to three types of content:

• illegal content.
• content that is harmful to children.
• content that is legal but harmful to adults.

All regulated services would have to protect users from illegal content. There would be additional duties for services likely to be accessed by children.

All services providing pornographic content would have a duty to prevent children from accessing that material (eg through age verification).

The largest and riskiest Category 1 service providers (such as some social media platforms) would have duties in relation to legal but harmful content to adults. The Bill would also require Category 1 providers to protect democratic debate and journalistic user-generated content.

A duty to prevent fraudulent advertising would be introduced for the largest social media platforms and search engines.

The Bill would also make changes to existing communications offences, as recommended by the Law Commission.

Ofcom would be the independent regulator. It would issue codes of practice recommending measures that service providers could take to comply with their duties. Ofcom would have enforcement powers including issuing fines of up to £18 million or 10% of a company’s worldwide revenue (whichever was higher), as well as business disruption measures.

Where would the Bill take effect?

The Explanatory Notes to the Bill state that, as internet services policy is reserved, the Bill is “broadly reserved”. However, a small number of provisions would need legislative consent motions from the devolved administrations.

The Bill’s information offences would have extra-territorial application.

Background to the Bill

The Bill represents the culmination of a long process of policy development and consultation. An Internet Safety Strategy Green Paper (PDF) (October 2017) looked at, among other things, the responsibilities of companies to keep users safe and the use of technical solutions to prevent online harms. In May 2018, following a consultation on the Green Paper, the Government announced that it would be publishing a white paper (PDF) setting out plans for online safety legislation.

The Online Harms White Paper (PDF) of April 2019 proposed a new regulatory framework to prevent online harms. At its core would be a duty of care for service providers. A consultation on the proposals closed in July 2019. In its December 2020 response, the Government said that an Online Safety Bill would be introduced.

A draft Online Safety Bill (PDF), published in May 2021, was subject to pre-legislative scrutiny by a Joint Committee of the two Houses of Parliament. The Committee’s report (PDF) was published on 14 December 2021. The Government’s response (PDF) was published on 17 March 2022 and explains how the Government has incorporated sixty-six of the Committee’s recommendations into the Bill. The Government factsheet on the Bill summarises some of the main changes.

Reaction to the Bill

Children’s charities, such as Barnardos and Childnet, have welcomed the Bill’s provisions on pornography.

However, the End Violence Against Women Coalition has criticised the Government for not naming violence against women and girls as a priority harm on the face of the Bill.

The Government’s proposals for tackling content that may be “legal but harmful” to adults have been controversial throughout the policy development leading to the Bill. The provisions in this area remain contentious.

In 2018, the Carnegie UK Trust proposed a duty of care for social media platforms and has followed the development of Government policy since. The Trust welcomed changes that the Government has made in response to scrutiny of the draft Bill but claims, among other things, that the Bill “remains too complex”.

The internet lawyer, Graham Smith, has also noted the Bill’s length and complexity, and argues it could threaten freedom of expression.

Other commentators, such as Julia Hörnle, Professor of Internet Law at Queen Mary University of London, have said online safety should involve challenging the business models of the largest companies and is about “much more than taking down or blocking harmful content”.

Further reaction to the Bill is available in the Library Briefing, The Online Safety Bill: A reading list (PDF).

More on the Bill

The following supporting Government documents have been published:

• Explanatory Notes (PDF).
• Delegated Powers Memorandum (PDF).
• Impact Assessment (PDF).
• Online Safety Bill: European Convention on Human Rights Memorandum.
• Online Safety Bill: Regulatory Policy Committee opinion (PDF).
• Factsheet on the Bill.