On 6 September 2023 the Online Safety Bill (Bill) had its third reading in the House of Lords. 

The Bill is the Government’s flagship proposal for legislation regulating illegal and harmful online content online which was, according to the Government’s Joint Committee Report published in 2021, aimed at “holding online services responsible for the risks created by their design and operation”. In urging that the Bill be passed (and nearly 6 years after the original Green Paper) by the House of Lords, Lord Parkins of Whitley Bay said that:

“The Bill will establish a vital legislative framework, making the internet safer for all, particularly for children. We are now closer than ever to achieving that important goal. In a matter of months from Royal Assent, companies will be required to put in place protections to tackle illegal content on their services or face huge fines.”

Key commentary at the third reading

The Bill has been amended significantly since it was first introduced, and the House of Lords put forward a number of further (albeit more minor) amendments to the Bill at the third reading, including:

• the insertion of a definition of “age assurance” meaning ‘age verification or estimate’ to the threatening communications offence and clarification that a threatening communication offence can be committed by a person who sends a threatening message regardless of who might carry out the threat.
• in relation to information about a deceased child’s use of online services, the House of Lords  proposed amendments with regards to the information powers, the admissibility of statements in criminal proceedings and the use of apps by a deceased child.

See government amendments at the third reading for further information.

The House of Lords debated the government amendments as well as the Bill more generally at length.  However, a number of topics discussed which caught our attention included:

• Timetable for implementation of the Bill: In respect of Ofcom (the media regulator set to be given wide-ranging investigatory and enforcement powers to regulate online content once the legislation is enacted) guidance and regulations, Lord Parkinson of Whitley Bay (who serves as a Parliamentary Under Secretary of State at the Department for Digital, Culture, Media and Sport (DCMS)) confirmed that the timetables for implementing the Bill which Ofcom had assessed are dependent on issues which may still change when the Bill returns to the House of Commons and are being recalculated in the light of amendments that have been made in the House of Lords. This will presumably be in conjunction with Ofcom since Ofcom will be required to draft and publish multiple codes of practice and guidance documents ahead of any deadlines for the platforms to comply with the Bill once it has received Royal Assent.
• Ofcom’s Information gathering  and remote viewing powers: Ofcom will have a legal duty to exercise its power to view information remotely in a way that is proportionate ensuring that “undue burdens are not placed on businesses” and that in assessing what is proportional in the circumstances Ofcom would need to consider the size and resources of a service when choosing the most appropriate way to gather information from them and whether there is a method which is less onerous on the business.  The House of Lords anticipates that Ofcom will consult with platforms to ascertain how to obtain the information it needs to carry out its functions under the Bill and indicated that owing to the requirement on Ofcom to exercise its information-gathering powers proportionately, it is envisaged that Ofcom will need to consider less onerous methods of gathering information. Lord Parkinson of Whitley Bay said that this may include an audit or a skilled persons report for certain providers  or, for smaller service providers, remote viewing information.
• Encryption and Private Communications and Safety by Design: As to encryption technology used by platforms on private communications, Ofcom can require the use of proactive technology by a private communication service by issuing a notice to tackle child sexual exploitation and abuse content under Clause 122 of the Bill. A notice can be issued only where technically feasible and where technology has been accredited as meeting minimum standards of accuracy in detecting only child sexual abuse and exploitation content. Where this applies, Ofcom is also required to comply with existing data protection legislation when issuing a notice under Clause 122 and, as a public body, is bound by the Human Rights Act 1998 and the European Convention on Human Rights. In practice, Lord Parkinson of Whitley Bay also said that in deciding whether or not to issue a notice, Ofcom will work closely with platforms to help identify solutions to address child exploitation and abuse which are reasonable and technically feasible and that this will include looking at evidence in respect of a skilled persons report and the power to require companies to use “best endeavours” to develop or source a new solution. In particular, he said that: “It is right that Ofcom should be able to require technology companies to use their considerable resources and expertise to develop the best possible protections for children in encrypted environments. That has been our long-standing policy position”.

What can we expect next?

The Bill was passed by the House of Lords at its third reading. The Bill will now be returned to the House of Commons with amendments.

We expect that the Bill will be approved by the House of Commons without further significant changes.

Once the bill receives Royal Assent, some aspects of the Bill will come into effect while the dates for implementation of most parts will be determined by the Secretary of State working in conjunction with Ofcom (who will be required to publish guidance and regulations in coming months.

Like to hear more on this topic?

You can watch the third reading here: https://parliamentlive.tv/event/index/f49004dc-0856-45c7-b028-20098aca73d7?in=15:39:30

We have previously written about the Online Safety Bill here:

• The return of the Online Safety Bill, Ally Clark, Duncan Calow (dlapiper.com)
• 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)
• Online Safety Bill arrives at the House of Lords, Ally Clark, Duncan Calow (dlapiper.com)