The Privacy Perspective

PART VI: UPDATES

Any commentary upon legislation in progress risks rapidly becoming outdated: an occupational hazard to which this piece is by no means immune.

Ahead of the OSB’s return to Parliament, the Government issued a press release on 28 November 2022 noting a number of important developments to the amended Bill.

Recalling many of the issues highlighted in Parts I – V of this commentary, the principal changes include:

 Most significantly, the removal of the ‘legal but harmful’ provisions from the Bill. Adult safety duties seen as incentivising the over-removal of legal (if potentially harmful) content have been abolished.

 These are to be replaced by a so-called ‘triple shield’ of online protection, comprising:

1. The duty upon social media sites to protect users against illegal content, now reinforced by the creation of new offences targeting the encouragement of self-harm and sexual harassment.
2. Stronger obligations upon social media sites to publish and enforce their terms of service, specifically concerning risk assessments and age-appropriate checks for child users.
3. Provisions for adult users to exercise greater choice over the content they encounter online, via user-empowerment ‘tailoring’ tools which allow users to control and filter their exposure to legal but potentially harmful content. However, major platforms are not obliged to remove / restrict such content, or to ban users. Indeed, they are expressly prohibited from doing so, unless the law or their terms of service have been breached. The new duties on Category 1 services are framed as prioritising transparency, accountability and free speech.

 Tech platforms, as private companies, retain the right to set their own terms of service. However, such safety policies must be enforced. If platforms do take action to ban a user, or remove user-generated content, the user in question must be offered an effective right of appeal.

More detailed summaries of the changes to the Bill may be found here and here.

Media attention, unsurprisingly, has focused on the changes to the ‘legal but harmful’ provisions. (Commentators have rightly noted, however, that some headlines overstate the changes’ significance, since the revised OSB did not stipulate the removal of content which was legal but harmful to adults.)

The amendments have not, however, quelled criticism from advocates for free speech. The civil liberties campaign group Big Brother Watch has voiced concerns over state enforcement of platforms’ terms and conditions.

In the opposite camp, those campaigning for children’s online safety fear that the OSB’s provisions have been diluted. Ian Russell, the father of Molly Russell, has described removing the legal but harmful clause as ‘watering down’ the protection under the Bill. The chief executive of Samaritans, and the Shadow culture secretary, have also criticised the changes as a ‘backwards step’, prioritising free speech over the prevention of online harm.

The changes were defended by the Culture Secretary, Michelle Donelan, who explained that the legal but harmful provisions created a ‘quasi-legal category between illegal and legal’ speech. According to the Minister, this was not only ‘confusing’, but risked unintended and ‘very, very concerning’ consequences for free speech, which had thus far hobbled the Bill’s progress.

We await the outcome of the Bill’s passage through Parliament – with arguably less apprehension, albeit no greater optimism.

Parts I and II can be found here with Parts III, IV and V, being found here.

Naomi Kilcoyne is a Visiting Lecturer in Public Law at City University, having completed her GDL there in 2021-22. She has a particular interest in the interplay between public and private law.