What’s next? A review of the committee stage of the Online Safety Bill

Early last week, the line-by-line examination of the Online Safety Bill came to its conclusion. 194 clauses, 14 schedules, over 150 amendments and dozens of new clauses were scrutinised by the 17-strong committee. It now goes on to Report Stage on 12^th July.

The Government’s strategy in Committee – led by the Digital Minister Chris Philp – was to not accept any Opposition amendments and to limit its own to a handful. During the 26 hours or so of line-by-line debate, the Minister “understood”, “appreciated” and “had sympathy” with a great many of the Labour and/or SNP-sponsored amendments – some of which were even supported in principle by his Conservative colleagues – but this did not translate into concessions.

The Opposition were well-prepared, however, and the exercise did provide some useful points of clarification about the Bill as drafted. But the scrutiny has also exposed a gap between “Government reassurances” – for example, that a particular power is not supposed to be used in a particular way – and the extent to which these reassurances are at odds with the complex drafting of the Bill.  (At one point, Philp even suggested that future regulators trying to interpret the Bill might refer back to Hansard to understand the Government’s intention.) This tension was particularly evident in the debate on an issue that Carnegie UK has long been concerned about: the powers conferred to the Secretary of State through the Bill. Amendments to remove the power to direct OFCOM for “reasons of public policy” were “respectfully resisted” by Philp who reassured the Committee that powers would only be used in “exceptional” circumstances, even though the Bill does not restrict the Secretary of State to such circumstances.

As the amended Bill progresses through Parliament, we take stock below on the areas where the Government has committed to some change and those where – should the Opposition parties continue to push – there may be some room for concession.

Confirmed change through Government amendments

The following amendments were brought by the Government.

• Fraud – one of the most substantive Government amendments concerned fraud – a key focus for campaigners. The amendment brings into line the duty imposed on providers of Category 2A services relating to content consisting of fraudulent advertisements with the corresponding duty imposed on providers of Category 1 services by Cl 34(1).
• Jurisdictional alignment – amendments here added UK-wide jurisdictional offences to sit alongside the offences in England and Wales already listed.
• Tightening up – the Government also moved several smaller, technical amendments including adding the ICO to the consultation list for OFCOM when creating guidance on enforcement powers; and ensuring the definition of “relevant content” is kept the same throughout.

Confirmed change in principle – detail tbc

There was also a smaller subset of issues which the Minister confirmed would be addressed, but no further detail on the Government’s intent is available. For example:

• Flashing imagery – Kim Leadbeater (LAB) led on an amendment (“Zach’s law”) to ensure that the deliberate sending of flashing images would be covered as a standalone offence. While the amendment as drafted was not accepted, Philp did commit to the Government bringing in the offence, which has already been recommended by the Law Commission, and appealed for support with drafting, He could not, however, confirm that the offence would be included in the OSB, referring to the need for collective Government agreement on a suitable legislative vehicle. This was an issue notable for the fact that Philp came under most pressure from his own backbenchers, and he referred to the impact – behind closed doors and in Committee – that the lobbying of Conservative backbenchers Dean Russell and Caroline Ansell had had alongside Leadbeater and the SNP.
• Priority harms to adults – Carnegie UK, along with many in civil society and elsewhere, has concerns that – in the absence of the Government publishing a list of harms to aid scrutiny – Parliament would have to wait until after Royal Assent and the laying of a Statutory Instrument by the Secretary of State to understand what is in scope here.  But, on the final day of scrutiny, the Minister twice referenced the list of harms which they “will publish in due course”, though a timescale wasn’t provided.
• Mis/Disinformation – the Bill text has minimal reference to mis/disinformation and the Government pushed back on a specific amendment to ensure health mis/disinformation was on the list of issues designated as harmful to adults. Philp – somewhat surprisingly – stated later, however, that “the Government have already committed to designating some forms of harmful health mis and disinformation as priority harmful content in secondary legislation“.

Possible change – as yet not confirmed

While the form of these is not clear, the Government did appear to signal some movement in the following areas:

• Categorisation of small but risky platforms – current size-based criteria for the Cat1/2 dividing line would not catch small but high-risk platforms where significant harm can occur.  A note sent by OFCOM to Parliamentarians seems to confirm this. Several times throughout proceedings, the Minister noted that the Government has heard the points being made on this issue and – in a strong signal from Philp in the last hearing – seemed poised to bring forward its own amendment on this. (Sir Jeremy Wright MP, former DCMS Secretary of State, has already tabled his own for Report stage.)
• Illegal content – the Bill lists priority offences, but many MPs are concerned that this will mean some offences will be covered more quickly and more extensively to the detriment of others. So, a key feature of the Committee’s debate was the highlighting of particular areas of illegal activity that had not been included in the priority list.  Specific issues raised included: trafficking and modern slavery, which Philp was “happy to give that further consideration, but please do not interpret that as a firm commitment.“; suicide material and material encouraging children to suicide; and animal abuse offences. Regarding the definition of illegal content Philp made a point of saying “to the Committee that we are listening very carefully to the points that are being made.“

No change – for now?

One of the most common responses by Philp in Committee was to reject Opposition and SNP amendments, citing duplication. In some areas, he was often able to point to a particular clause that provided helpful clarification; but in many others, he supported his case by multiple cross-references of disparate and often unconnected clauses to demonstrate how the regime would work. The Minister thus demonstrated why the Bill needs strengthening, so, many of these amendments are likely to return at later stages.

• Secretary of State’s powers – the Government showed little appetite for addressing the excessive powers of the Secretary of State, particularly in Clause 40 and the egregious Clause 147. We note that Sir Jeremy Wright has tabled an amendment to Cl40. There will be continued pressure on these powers.
• Violence against women and girls (VAWG) – this is the area where Philp came under most pressure to amend the Bill, with notable interventions from members of his own party. However, he consistently refused to add in any mention of women and girls in the Bill, pointing to other legislation such as up-skirting or stalking, which will in turn be covered under non-specified offences. In a line of questioning on the inclusion of a specific code of practice to tackle VAWG, the Minister confirmed that the current drafting does not preclude OFCOM from developing a VAWG code of practice (such as the draft version produced by a coalition of experts), even if it is not listed in the mandatory set of codes. But without naming the requirement for a Code in the Bill itself, OFCOM will not be required to produce it and therefore are unlikely to prioritise it in its early programme of work.
• Media literacy – a number of new clauses were brought forward on media literacy, which has largely disappeared from the Bill since the draft. While the Government recognised and supported the intention behind the amendments, the Minister pointed to OFCOM already having a statutory duty to provide media literacy on digital engagement (Communications Act 2003) and that media literacy is “well covered already”.
• Cross-platform risk –the Minister opened his remarks to the amendment stating “we completely agree with the Opposition that cross-platform risk is a critical issue” and the position outlined by Government is that they believe that it is already covered by the Bill: “our legal advice is that it is covered by the Bill, because in clause 8 as drafted… already includes the phrase to which I alluded previously. I am talking about the requirement that platforms risk-assess illegal content that might be encountered “by means of the service”.
• Intersectionality – through an amendment seeking to extend the term “group “to include “groups” as a way of ensuring that multiple intersecting identities would be taken into account, the Minister noted that Section 6 of the Interpretation Act of 1978 means that where a word is written in singular, it automatically includes the plural of this word. This is significant to intersectionality considerations – in risk assessment, platforms will have to give consideration to harms that particularly affect individuals with a certain characteristic – or characteristics – and members of a particular group – or groups. This is a helpful clarification but does not prioritise intersectional harms for OFCOM attention.
• Users – more terminological clarifications were given on the term “user”.  Kirsty Blackman (SNP) raised a question around the way in which platforms will be counting users accessing their websites and whether only registered users would be counted particularly for the purpose of children’s access assessment. The Minister clarified that the duties to protect children will in fact apply to child users who access content “by means of” a site, including by clicking on a link shared on one platform that leads to a different platform. Earlier in proceedings he confirmed that “the simple act of browsing that service…regardless of whether or not the hon. Lady has an account with it, makes her a user of that service”.
• Metaverse – in terms of scope, it was confirmed that the Metaverse would  already be considered within the regime of the Bill Cl49 (2)(D), the only exemption applies if it is not accompanied by user-generated content by any description.
• Accessibility – through discussion on the accessibility requirements Philip confirmed that OFCOM is subject to the public sector equality duty and could confirm that OFCOM when drafting codes of practice will have to take into account accessibility.

Not changing – Not in the Bill

Finally, there were some significant areas of debate and amendment that arose that the Government were keen to make clear, while important, were out of scope of the OSB. These include:

• Victim support – despite repeated attempts from Dame Maria Miller (Con) to get the issue of victim support addressed, it was continually pushed back to the Victims Bill and Ministry of Justice. Philp did, however, commit to put the idea of a ‘victims hypothecated fund’ to HM Treasury colleagues.
• “Duty to distinguish paid-for advertisements” – this area was also deemed out of scope for the OSB instead to be picked up through the online advertising regulation.
• Ombuds-service – Minister Philp was clear that this was something that would only be considered when the regime had been running for a few years.

Where do we go from here?

Philp also pushed back on amendments citing potential unintended consequences or technical issues with drafting; and the forthcoming OFCOM roadmap (likely due before Report) did a fair share of heavy lifting when the Minister was pushed on timescales and details of codes or guidance. Many areas are still left to secondary legislation. The Bill functions as a prioritisation mechanism – if something is designated to secondary legislation, then OFCOM and the Secretary of State will require many months to establish it. If something is not specified in the Bill but, say, is caught in general illegality then it will have to go to the back of the queue behind the priority matters the Bill charges OFCOM to deal with.

It is not clear how the Government’s concessions strategy will be applied at Report. A good number of the points raised in Committee will return in the Lords. To its credit the Government made significant concessions between Pre-Legislative Scrutiny and Introduction and the overall thrust of the Bill continues to attract cross-party support. So, it isn’t clear how future concessions might be made.  In his final speech in front of the Bill Committee, the Minister has indicated that we can expect some Government amendments: “we are listening, and no doubt flexibility will be exhibited in response to some of the points that have been raised. I look forward to working with members of the Committee and Members of the House more widely”.

However, what we do know for certain is that with Report Stage set for 12^th July there is not a huge amount of time for those members unfamiliar with this complex Bill to get to grips with it, and for campaigners to land their amendments.

We have been actively involved in this process for over four years and will continue to work across the House and with other organisations on areas of the Bill we feel still need improvement. We encourage Parliamentarians or their staff to get in touch with us directly.

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