05 Sep 2022

Removing confusing ‘legal but harmful’ definition for adults is the right way to ensure the Online Safety Bill can achieve its objectives to make the UK the safest place to be online for children

The Online Safety Bill is an important piece of legislation that is needed to protect children from harm online and ensure that tech companies have a clear and workable regulatory framework to address illegal and seriously harmful content online.

techUK and its members have been supportive of this legislation and have worked with the Government since before the 2017 Online Harms White Paper, which set the objectives for the current Online Safety Bill. We have continued to work with policymakers to shape an online safety regime that is workable and delivers on these objectives.

However, since the 2017 White Paper, through the Bill-drafting process and its current passage through Parliament, there have been significant changes that have expanded the scope of the legislation and complicated obligations it sets for in-scope companies. These changes have resulted in an expansive and bloated Bill that is at risk of creating an unclear and unworkable regime. This risks serious unintended consequences for millions of UK-based internet users and the more than 25,000 companies in scope of the Bill. Fundamentally, it may place significant limitations on the ability of the Government and the regulator to deliver on the core policy objectives.

At the heart of the Bill is the need for a fine balance between safety and free speech. These objectives require trade-offs in order to create a regime that is workable. Unfortunately, as it stands the Bill does not achieve this balance.

The risks resulting from the Bill are threefold:

1. The risk to the experience of internet users and freedom of expression

As it stands, the Bill creates a regime which will incentivise the over-removal of content. This will result in content that is both legal, and in many cases uncontroversial, being removed. It may result in internet users being silenced even though they have done nothing wrong. It will also result in content on key aspects of human lived experience being removed such as the sharing of stories related to surviving suicide, domestic abuse, and self-harm. This content is undoubtedly difficult but can be of great value to communities of people online. Much of this comes down to the parts of the Bill that address ‘legal but harmful’ content which are unclear.

2. The risk that seriously harmful content gets and stays online

The parts of the Bill concerning ‘content of democratic importance’ and journalistic exemptions require careful review. Protecting legitimate media organisations and other content of democratic importance is an essential objective of the Bill. However, the definitions of what constitutes a journalist or media organisation remain vague and open to abuse. The self-identification of activists as news publishers has been cited as an example of the possible loopholes. Furthermore, the protections given to anyone defined as a verified news publisher mean that potentially seriously harmful content which goes against the standards set by platforms themselves, such as footage of a terrorist attack, would need to stay online during a potentially lengthy review process. It is areas such as these in which the competeing objectives of freedom and safety collide.

3. The risk to the digital economy

Finally, the complexity of the Bill and its unclear definitions creates a worrying cumulative effect for smaller organisations without significant compliance resources. The necessity of risk assessments and the authority of Ofcom in this process must be recognized, however the absence of clarity and long-term certainty of the regime, including how the Secretary of State, Ofcom and services will interact will ultimately increase compliance costs for businesses. There is particular concern for small businesses and startups who may grow to fall within scope and are unclear of their obligations from the face of the bill. Given that many companies may not have the resources or capacity to comply to specific measures, without further clarity, the bill threatens to hinder technological innovation and growth across the digital economy as investment in new services is diverted from the UK.

An opportunity to review, simplify, and focus the Online Safety Bill

As the Bill returns to Parliament this month under a new Prime Minister, there is a clear opportunity to address these risks and ensure the Bill achieves its main objective of protecting children, while also supporting freedom of expression for adults. techUK is calling for a revision of the Bill, to simplify it and bring it back in line with the 2017 Online Harms White Paper. Simplifying the Bill and providing clarity will empower businesses and equip them with the right regulatory framework to make the internet a safer place, especially for children. The new Prime Minister should consider the following:

1. Remove ‘legal but harmful’ for adults

As outlined above, the inclusion of unclear provisions around ‘legal but harmful’ content may lead to the over-removal of legitimate content online. Placing the obligation on companies to decide what falls within vague definitions has the potential to create unequal standards, undermine the democratic right to free expression and interrupt technological innovation. These provisions should be removed for adult internet users, with a focus on illegal content.

However, in addition to the definitions on illegal content, the Government must ensure that there is sufficient clarity on harmful content for children in order for the Bill to achieve its child safety objectives. The Bill currently does not provide the level of clarity businesses need to prepare for and comply with the regime. Furthermore, we acknowledge the importance of the role of age assurance measures in order to keep children safe online.

techUK calls for the removal of 'legal but harmful' content for adults. Leaving such vague categories of harm within the bill threaten to make the legislation unworkable for the 25,000 companies in scope as well as undermining some of the UK’s key democratic values.

2. Clarification of Definitions Within the Bill

In order to achieve its objectives, the Bill needs clear definitions, allowing for the necessary protections that uphold the democratic value of freedom of expression while ensuring the ultimate safety of users.

techUK supports the Government’s objectives on protecting democratic and journalistic content but we are concerned by the lack of clarity about what constitutes a ‘recognised news publisher’ and its interaction with Clause 19 on protecting news publisher content.

As outlined above, this risks allowing purveyors of propaganda, far right extremism and misinformation qualifying for exemptions as news publishers. Should such actors be able to identify themselves as ‘news publishers’, they will have the right to appeal decisions to remove content that goes against a services own guidelines.

techUK calls for further clarity on the parameters of journalistic content and the definitions of recognised news publishers on the face of the bill, to enable businesses to have clear guidelines and enforce quick and effective decision making around how to protect journalists, while ensuring users are also protected from harm.

3. Clarity on the Requirements for Businesses

In order for businesses with in-scope services to deliver on the Bill, they must have clear rules. The most pressing areas in need of review are the clarification of the harmful communications offences and the need for a clear and workable user empowerment provisions.

The harmful communications offences in the Bill threaten to limit freedom of expression and risk being unworkable for businesses and the regulator. When used in conjunction with the illegality safety duties, the harmful communications offence could enable individuals to claim that controversial albeit legal content causes them psychological harm and call for its removal. By incentivising in-scope companies to over-remove legal material, there is a significant threat to general freedom of expression.

Empowering and educating users is one of the most powerful ways to improve online safety. However, the current provisions on user empowerment and controls are too prescriptive and have been shaped with certain types of existing services in mind without regard for the broad diversity of in-scope services, future innovation, and the capacity of companies to implement specific measures. In practice, nuance is needed to allow companies to give users control over their online experience, enabling them to filter out content they don’t want, without prescribing one specific solution of identity verification.

techUK has also been calling for clarity in other areas including the thresholds for categorisation and the process of risk assessments, to ensure that compliance does not follow a one-size-fits-all approach. Furthermore, new aspects of the Bill proposed in government amendments potentially requiring the use of technologies that do not yet exist to monitor direct messaging services for terror and CSEA content need proper and full industry consultation given their implications for privacy and freedom of expression. They otherwise set a dangerous precedent, by threatening to undermine end to end encryption and the protection and privacy of users.

techUK calls for clarity on the requirements for in-scope services, including clearer guidelines within the harmful communications offence. techUK is committed to working in association with Government and Parliament to propose workable amendments that address this offence while still upholding freedom of expression.

techUK is also calling for the addition of necessary nuance, allowing companies to empower users using methods beyond solely user verification, which is currently unworkable for several businesses within scope.

This Bill can make a safer internet

The UK is, alongside other jurisdictions around the world, grappling with how best to legislate for illegal and seriously harmful content online. The best way forward is for the Government to give clarity to businesses to enable them to play their part in making the internet a safer place, especially for younger internet users. Now is the time for a serious review of the Bill by the new Prime Minister, to ensure that the important objectives it sets out to achieve are met.

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techUK is in constant dialogue with Government and policy makers to provide the perspective of the tech industry on a wide range of policy issues. Current policy engagement includes online safety, data protection, competition in digital markets, and online fraud. Get in touch to see how we can support your policy work. Visit our Digital Society Hub and complete the ‘contact us’ form.