Amending the Online Safety Bill

1 Scrutinising the Bill

1. The Government published its draft Online Safety Bill on 12 May 2021.¹ We considered the text in parallel to the Joint Committee on the Draft Online Safety Bill, drawing attention to the tensions that needed to be addressed regarding the categorisation of legal but harmful content and activity, Ofcom’s suite of powers and parliamentary oversight of the regime. The Government then introduced its Online Safety Bill in the House of Commons on 17 March 2022 (reintroduced, following prorogation, in the current Session of Parliament on 11 May 2022). We were pleased to see that the Government had listened closely both to us and the Joint Committee and improved the text of the Bill.

2. As might be expected with legislation on such a complex matter, there remain a number of urgent issues that individuals, campaign groups, interested organisations and the industry would like to see further addressed. We decided to take oral evidence to understand what these outstanding issues might be and whether we wished to formally seek to amend the Bill. In oral evidence, a number of issues were raised; three key issues were:

• The potential for the Secretary of State to interfere with the issuing of codes of practice;
• The potential to make individuals in social media companies more directly responsible for ensuring their services were “safer by design”; and
• Whether the Bill should mandate the provision of digital literacy to better enable users to secure their own safety when online.

We have prepared this short Report to set out the case for bringing forward urgent amendments to the Bill as it reaches Report Stage in the House of Commons. We will continue to monitor developments in this area as the Bill progresses through Parliament.

3. Having listened carefully to the evidence, we are convinced that the key issue is to ensure the integrity of Ofcom, the proposed regulator for online safety. We have endorsed Ofcom for this role since the beginning of this Parliament, noting in our Report on Covid-19 misinformation that “Ofcom’s track record of research and expedited work on misinformation in other areas of its remit in this time of crisis as arguments in its favour”.² The Bill is structured, through its safety duties and resulting codes of practice, so that everything else flows from the independent functioning of the regulator. William Perrin, Trustee of the Carnegie UK Trust, highlighted how the powers being granted to the Secretary of State by the Bill might impede Ofcom’s ability to discharge its duties in an independent manner:

I feel one of the best measures to protect freedom of expression in the Bill would be to row back a little on some of the powers of the Secretary of State, of the Executive, to interfere in what the independent arm’s length regulator does and the decisions it takes in its regulation because the underpinning convention of regulation of media in Western Europe is that there is an independent regulator and the Executive does not interfere in their day to day decision-making for very good reason. In the regime set out here, there are few too many powers for the Secretary of State to interfere in that manner, rather than merely giving strategic direction on important matters.³

Dr Edina Harbinja, Senior Lecturer at Aston University, told us that the powers sought by the Secretary for State in this matter made her “fear that Ofcom’s independence may be compromised” and that “similar powers are creeping into other law reform pieces and proposals, such as the data protection proposal”.⁴

4. Furthermore, William Perrin dismissed the idea that the Bill’s requirements to take proposals to Parliament would act as an appropriate safeguard against these powers:

Clause 40 is explicitly drafted so that the Secretary of State can infinitely reject proposals it receives from Ofcom until it gets the proposal it wants. It is a very unusual power and that is before the Secretary of State then brings the [Statutory Instrument] to Parliament.⁵

As such, Parliament would only be engaged after the Secretary of State had already exercised these powers.

5. We note that, even if the amendments we propose in the Annex to this Report are accepted, the Bill would still:

• mandate that the Secretary of State is consulted when codes of practice are drafted and amended;
• provide for the Secretary of State to draw up guidance on how the regulator exercises its functions in relation to online safety; and
• provide for the Secretary of State to give direction to the regulator in special circumstances involving the health or safety of the public or national security.

6. There is no need for the Online Safety Bill to provide the Secretary of State, now or in the future, with the power to direct or block the regulator from issuing codes of practice before Parliament considers them. The Government must maintain its approach to ensuring independent, effective and trustworthy regulation that has a proven track record in other sectors. We recommend that the Government accept the amendments presented in the Annex to this Report.

Annex: Proposed Amendments

Amendment 1

Clause 39, page 37, line 25, leave out from beginning to the second “the” in line 20

Amendment 2

Page 38, line 8, leave out Clause 40

Amendment 3

Page 39, line 30, leave out Clause 41

Formal minutes

Thursday 30 June 2022

Members present:

Julian Knight, in the Chair

Kevin Brennan

Clive Efford

Rt Hon Damian Green

Jane Stevenson

Draft Report (Amending the Online Safety Bill), proposed by the Chair, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 6 read and agreed to.

Annex agreed to.

Resolved, That the Report be the First Report of the Committee to the House.

Ordered, That the Chair make the Report to the House.

Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No.134.

Adjournment

Adjourned till Tuesday 5 July 2022 at 9.30 am.

Witnesses

The following witnesses gave evidence. Transcripts can be viewed on the inquiry publications page of the Committee’s website.

Tuesday 7 June 2022

Dr Edina Harbinja, Senior lecturer, Aston Law School; Ellen Judson, Lead researcher, Demos; William Perrin OBE FRSA, Trustee, Carnegie UK; and Izzy Wick, Director of UK Policy, 5Rights FoundationQ1–48

List of Reports from the Committee during the current Parliament

All publications from the Committee are available on the publications page of the Committee’s website.

Session 2019–21

Session 2021–22

Session 2019–21

Footnotes

1 DCMS, Draft Online Safety Bill, 12 May 2021

2 Digital, Culture, Media and Sport Committee, Second Report of Session 2019–21, Misinformation in the COVID-19 Infodemic, HC 234, para 76

3 Q3

4 Q4

5 Q5