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Online Safety Bill: Update for Report Stage

Volume 717: debated on Thursday 7 July 2022

Today the Government are committing to a series of changes to strengthen the Online Safety Bill further, and deliver our manifesto commitment of making the UK the safest place in the world to be online. This ground-breaking legislation will make technology companies accountable to an independent regulator to keep their users safe, while enshrining safeguards for freedom of expression online.

The Government have tabled amendments to make a series of changes to the Bill.

This includes:

Temporary “must carry” requirements for platforms to carry recognised news publisher content until an appeal on removal or moderation has taken place.

Changes to the illegal safety duties, to include the risk that a service is used for the commission or facilitation of an offence, better to address concerns about cross-platform harms and breadcrumbing.

Providing further powers to enable Ofcom to require companies to take additional steps to tackle child sexual exploitation and abuse online.

Strengthening the harmful and false communications offences, by including a partial exemption for holders of certain licences to ensure licence holders are not able to undermine the offence or avoid prosecution for harmful behaviour.

Changes to make clearer that category one service providers can decide to allow harmful content on their service if they choose to.

In addition, many people are rightly concerned about the threat that state-sponsored disinformation poses to UK society and democracy. The Government have tabled an amendment that builds a bridge between the National Security Bill and the Online Safety Bill. This amendment to the National Security Bill will designate the offence of foreign interference as a priority offence in schedule 7 to the Online Safety Bill. This will capture the kind of state-sponsored disinformation that is of most concern: covert attempts by foreign state actors to manipulate our information environment in order to interfere in UK society and undermine our democratic, political and legal processes.

Following careful consideration and consultation with stakeholders and parliamentarians, the Government commits to implementing the following changes, bringing forward amendments in the Lords where necessary:

Small but high-risk services:

Emerging risky services list

The tech sector is fast-moving and companies can rapidly expand. The Government recognise concerns that this pace of change will make it more challenging for Ofcom to keep the register of high-risk, high-reach—category 1—services up to date. To address this, the Government will introduce a new duty on Ofcom to identify and publish a list of companies that are close to the category 1 thresholds. This will ensure that Ofcom proactively identifies emerging risky companies, and is ready to assess and add these companies to the category 1 register without delay.

This new requirement on Ofcom will be combined with Ofcom’s existing duties continually to assess regulated services and to add them to the register of categories if they meet the relevant threshold conditions. This will ensure the regime remains agile and able to adapt to emerging threats, as well as ensuring Ofcom can develop a detailed understanding of new risks.

Deferred power to apply the adult safety duties to small but high-risk services

We also recognise the concerns which have been raised around smaller platforms which allow or encourage suicide, antisemitic, incel and racist content on their services, and we will continue with cross-government work on such issues. These platforms will already be subject to the illegal safety duties, ensuring that they put in place effective measures to prevent the most harmful content being shared on their services.

The current provisions in the Bill relating to legal content that poses a risk of harm to adult users acknowledges that the reach of such content, as well as the functionality of the service, such as algorithmic promotion of harmful content, will affect the risk it poses to users.

Further research is necessary to determine whether there is sufficient evidence to expand the duties on small but risky platforms. We will therefore be conferring a deferred power on the Secretary of State to create a new category of small but high-risk services which will be subject to the duties relating to adults’ risk assessment and adult safety. This change will mean those smaller but high-risk services will be held to account for the transparent and consistent enforcement of their own terms and conditions. The services included in this new category would be identified through a similar process as for category 1 services in the Bill, but without a requirement relating to the number of users of the service. The Secretary of State will also be able to consider other relevant factors in addition to the risk of harm, to avoid inadvertently bringing small services into scope where this would not be proportionate to the risk presented.

To ensure the Secretary of State has the necessary evidence to inform the decision on whether to make this change, we will require Ofcom to produce a report with evidence of the prevalence of, and risk associated with, priority harmful content on non-category 1 services. The Secretary of State will be required to consider that report when taking the decision on whether to commence the power.

It is vital that the Online Safety Bill remains targeted and proportionate and does not impose any undue burdens on business. We will only apply the adult’s risk assessment and adult safety duties to services in this new category, rather than the full range of category 1 duties.

Definition of “recognised news publisher”:

We are committed to protecting media freedom and the invaluable role of a free press in our society and democracy. We are clear that online safety regulation must protect the vital role of the press in our society. This is why we have provided protections for recognised news publisher content and journalistic content. News publishers’ websites are not in scope of online safety regulation. The legislation also contains safeguards for news publisher content and wider journalistic content when it is shared on in-scope social media platforms, including a right of appeal for journalists when their content is removed. At report stage, we will strengthen protections, including to ensure that recognised news publishers’ content remains online while an appeal takes place. However, we are clear that sanctioned news outlets such as RT must not benefit from these protections. As such, we intend to amend the criteria for determining which entities qualify as recognised news publishers in the Lords explicitly to exclude entities that are subject to sanctions.

Epilepsy trolling:

Flashing images sent online deliberately to people with epilepsy can result in significant harm. The Government have listened to parliamentarians and stakeholders about the impact and consequences of this awful behaviour. We welcome the Law Commission’s recommended new criminal offence and can confirm that the Government will legislate for a new offence of epilepsy trolling through this Bill at the earliest possible stage. We had hoped to introduce a Government amendment at report stage, but it is essential to create an offence that is legally robust and enforceable so that those perpetrating this disgraceful behaviour will face the appropriate criminal sanctions. We therefore commit to tabling amendments to create this offence in the Lords.

Secretary of State’s power of direction on codes of practice:

We recognise the concerns raised that the Bill allows too great a degree of Executive control. These have focused in particular on the power for the Secretary of State to require Ofcom to modify a draft of a code of practice for reasons of public policy. We remain committed to ensuring that Ofcom maintains its regulatory independence, which is vital to the success of the framework. With this in mind, we have built a number of safeguards into the use of the Secretary of State’s powers, to ensure they are consistent with our intention of having an independent regulator and are only used in limited circumstances with appropriate scrutiny.

We will make two substantive changes to this power: firstly, we will make it clear that this power would only be used “in exceptional circumstances”; and secondly, we will replace the “public policy” wording with a more clearly defined list of reasons for which the Secretary of State could issue a direction. This list will comprise national security, public safety, public health, the UK’s international relations and obligations, economic policy and burden to business.

We are grateful for the continued engagement and scrutiny of the Bill as it moves through its parliamentary stages. These changes ensure that the Bill remains sustainable, workable, and proportionate, and will create a significant step-change in the experience people have online.

Publishing risk assessment summaries:

We recognise the need for companies to be as transparent as possible when it comes to the level of risk in the design and operation of their services. This needs to be balanced with ensuring confidential information is protected, whilst maintaining the Bill’s risk-based and proportionate approach. The Bill already requires in-scope services to carry out risk assessments, keep them up to date and update them before making a significant change to the design or operation of their service. Ofcom will also require major platforms to publish annual transparency reports. Summaries of risk assessments could be included in this; however, we recognise calls to ensure this is more robustly enforced.

We therefore intend to require the highest risk companies to publish a summary of their illegal and child safety risk assessments, with a further requirement that the same categories of company submit these risk assessments in full to Ofcom. This should ensure greater transparency from the highest risk companies, whilst making it easier for Ofcom to supervise compliance with the risk assessment duty.