On 25 January 2023, the Communications and Digital Committee held a one-off session, with Paul Scully the Minister for Tech and Digital Economy, Lord Stephen Parkinson of Whitley Bay (who serves as a Parliamentary Under Secretary of State at the Department for Digital, Culture, Media and Sport (DCMS)) and Orla MacRae (the Deputy Director of Online Harm Regulation) to discuss the Online Safety Bill (the Bill); the draft legislation for regulating online content, ahead of its Second Reading in the House of Lords which is currently scheduled for 1 February 2023.

The session, which gave members of the Communications and Digital Committee the opportunity to raise questions and concerns in respect of the Bill, focussed on three widely debated areas:

1. the Secretary of State’s powers to direct OFCOM, the independent media regulator which will be appointed when the Bill becomes legislation, to modify its regulatory and enforcement code of practice;
2. the effectiveness of the new user empowerment tools for adults (i.e. the third shield of the “triple shield”); and
3. the measures for the protection of children.

The Secretary of States Powers to direct OFCOM

In its current iteration, section 39 of the Bill gives the Secretary of State of DCMS (currently the Rt Hon Michelle Donelan MP) the power to modify OFCOM’s code of practice where she believes it is required for reasons of public policy, terrorism, content and child sexual exploitation and abuse, national security or public safety.

This section has been widely criticised for giving unnecessarily extensive powers to the Secretary of State which (critics say) risk undermining OFCOM’s operational independence. The Communications and Digital Committee expressed particular concern with the ability for the Government to be able to direct OFCOM to change or delay the code of practice for reasons of “public policy” which is members of the committee considered was too vague.

In response to a question raised on this topic, Paul Scully gave assurances that “public policy” would be defined further by a list of specific areas including national security, public safety, public health, economic policy and burden to business before Bill returns to the House of Lords for its second reading. However, this didn’t satisfy appear to satisfy all committee members. Baroness Harding of Winscombe responded saying she was “really struggling to understand why [the Secretary of State] would need to retain [the power under section 39] for economic policy and burden to business reasons” . Lord Lipsley also made clear that the House of Lords would reject section 39 of the Online Safety Bill, as currently drafted, when he said: “aren’t you aware that when this comes to Parliament we won’t accept this…we won’t accept this, it isn’t a runner so isn’t it time you thought again before putting too much investment into something which cannot possibly survive?”  So, we can expect to see further changes to the Bill when it returns to the House of Lords for its Second Reading.

The effectiveness of the new user empowerment tools for adult safety online.

As reported in our previous article, the amended version of the Bill removes the legal but harmful for adults protection with a “triple shield” for adult users. The first shield requires platforms to remove all illegal content. The second shield requires platforms to remove any content that is banned by its own terms and conditions. Finally, the third shield (which was described in the session as a “safety net”) empowers adult users to “opt out” of seeing any remaining content on the platforms which is potentially harmful where the user does not want to see this type of content on their feeds.

Members of the Committee raised concerns that vulnerable adults may not know how, or be in the correct state of mind to, “opt out” of seeing legal but harmful content. However, Paul Scully defended the balance with free speech struck by the “opt out” mechanism by indicating that he considered that requiring individuals to “opt in” to seeing harmful content would be an automatic shield preventing people from exploring what they want to be able to explore on the internet.

When asked how the third shield, the user empowerment tools would work in practice, Paul Scully informed the committee that the Bill will not be specific about the tools which the platforms must implement. While an on/off toggle would be appropriate for some platforms, Paul Scully acknowledged that it may be inappropriate for certain publishers caught by the legislation such as a consumer businesses operating a review website which is caught by the legislation but not a social media platform.

Protection of Children

The Communications and Digital Committee challenged why online mobile app stores will not be bound by the Online Safety Bill or given greater responsibility for selling age restricted apps to underage children (in the same way a physical shop would be bound not to sell alcohol to under 18s). In response, Paul Scully made it clear that this was not within the scope of the Bill and that this could, and should, be covered under different legislations and programmes indicating that the Online Advertising Programme may be appropriate.

What can we expect next?

The House of Lords is scheduled to debate the Online Safety Bill at second reading on 1 February 2023.

Like to hear more on this topic?

A recording of the Lords Communications and Digital Committee’s session on 25 January 2023 is available here:

• Parliamentlive.tv - Communications and Digital Committee

We have previously written about the Online Safety Bill:

• Further amendments to the Online Safety Bill not ruled out: Parliament battling over the scope and detail of the Online Safety Bill, Ally Clark, Duncan Calow (dlapiper.com)
• The return of the Online Safety Bill, Ally Clark, Duncan Calow (dlapiper.com)

We also held a session on 'Online harms and media regulation’ as part of our Media, Sport and Entertainment Summit held virtually in September and October 2022 and accessible on demand by following the link.

Speakers: Duncan Calow, DLA Piper | David Cook, DLA Piper | Anika Kruse, DLA Piper | Darach Connolly, DLA Piper | and a key note contribution by Lord Tim Clement-Jones CBE, Member of the Joint Select Committee on the Draft Online Safety Bill (2021-22)

This session and each other session in the programme, which covered the full spectrum of the MSE industries and provided insights on current issues and opportunities, is now available to watch on demand.