With the exponential rise of electronic communications, digital harm, and the ever-growing spotlight on free speech issues, legislative change in this space has been a recent priority for the government.
Two recently introduced Bills in particular have the potential to have tangible ramifications in the media, reputation and privacy space – namely, the Bill of Rights and the Online Safety Bill.
This note discusses those two Bills – the scope of the proposed provisions, the current status of the Bills, and the ramifications for those concerned about the flow-on effects for reputation and privacy issues.
On 17 March 2022, the Online Safety Bill was presented to Parliament. The introduction of the Bill was of little surprise to those working in the area, as many commentators had been calling for legislative action to govern the escalating harms caused by the internet, including the rise in harmful online content such as online abuse, revenge porn and the spread of disinformation.
An objective of the Online Safety Bill is to protect children and to tackle illegal and harmful content online. The Bill is said to implement the government’s manifesto to make the UK the safest place in the world to be online, while defending and protecting freedom of expression. The Bill seeks to clarify the role of internet service providers in preventing and managing online harms, and is intended to provide a framework for regulating harmful online content.
The Online Safety Bill introduces a range of new provisions – and notably many of which impose statutory duties on online platforms for the first time. For example:
The Online Safety Bill has received a lot of media attention and has received backlash from critics across the political spectrum. One of the most controversial components of the Bill is the potential impact on users’ freedom of expression online. A Joint Select Committee has also taken evidence from big players in the social media and tech industry, including Google, Facebook, Twitter and TikTok.
Several changes have been made to the draft Bill since it was first published.
Last week, for example, an amendment to the Bill was announced which purports to strengthen press protections, and is said to have been designed to guard against “the arbitrary removal of articles from journalists at recognised news outlets when shared on social media platforms”. Under the amendment, large social media platforms (for example, Facebook and Twitter) would have to notify news publishers and offer them a right of appeal before removing or moderating their content or taking action against their accounts. Articles would remain visible and accessible while the review and appeal process was taking place.
On the one-hand, free speech advocates are claiming that the Bill goes too far in the name of online safety and in fact has the effect of curtailing free speech.
On the other, critics of the Online Safety Bill have cautioned that, as currently drafted, the Bill could become a “fake news laundromat” through the protections provided to press freedom. Academics have cautioned that the amendments could allow the spread of disinformation from persons and entities masquerading as established news publishers.
A further amendment to the Bill relates to the new communications offences for harm-based communications, false communications and threatening communications, as recommended by the Law Commission. These new offences are intended to ensure that the criminal law is focused on the most harmful behaviour and effectively tackles those harms, while offering protection to the freedom of expression.
The Bill is currently in its Report Stage before the House of Commons. The Bill is due to have its report stage and third reading from 12 July 2022, with proceedings concluding on 20 July 2022. Assuming the Bill is passed in its current form, it will be interesting to see how the regulator and courts interpret and manage the balance between protecting freedom of expression, protecting user privacy, promoting “journalistic content” and “content of democratic importance”, and preventing and minimising harmful online content. Given the millions of online users across the UK, the Bill has the potential to make a real impact and to generate meaningful change in the way online platforms are used and managed.
Despite the Bill’s controversy, for individuals and business concerned about their privacy and managing their reputation and profile online, there is little doubt that the Online Safety Bill is a positive development, given the increased scrutiny and regulation of online communications. No doubt there will be a flood of litigation once the Bill is passed, as internet service providers and social media platforms test the limits of the new duties, and it will be interesting to watch this space to see how the new online landscape develops.