Ofcom Sets Out UK Internet Censorship Plans Under Safety Bill

The UK communications and media regulator, Ofcom, has today set out their plans for putting the mess of complex and confusing legislation – that is the Online Safety Bill (OSB) – into practice, which aims to tackle “harmful” internet content through website bans by broadband ISPs, fines and other sanctions.

As we’ve said many times before, the aim of creating a law to clamp down on some of the worst aspects of internet content is a noble one (e.g. terrorist content, bullying, racism and hate speech, child abuse, self-harm, suicide imagery and conspiracy theories that incite violence etc.) and long overdue. At present, far too much of this slips through the cracks of the currently weak self-regulatory approach, as aptly demonstrated so many times before via Facebook, Twitter and other platforms (e.g. they’ve been slow to clamp-down on ISIS and political leaders inciting violence).

However, the reality of trying to actually achieve such an outcome, as well as the Government’s own desire to keep expanding the bill’s remit with major changes, has resulted in a mass of tedious legislation. The bill is now so big, complex and overbearing that it may not even be workable, without causing a significant level of mass censorship. It also succeeds in doing something that we never thought possible – making the General Data Protection Regulations (GDPR) look simple by comparison.

The big challenge stems from the difficulty of trying to strike the right balance between preserving Freedom of Expression and fostering outright Censorship, which is what happens when you attempt to police common and highly subjective public displays of negative human thought. Balancing this against complex issues of context (e.g. people joking about blowing up a city in a video game vs actual terrorists), parody and political speech is a monumentally difficult task. Humans often get it wrong, and automated systems are even worse.

Despite all the promises around “preserving” freedom of expression, the reality of the OSB is that it will impose such a high level of liability on internet content providers – catching both big social networks and small websites alike (albeit with softer measures for smaller players) – that many content providers will be forced to either significantly restrict user-generated content (forums etc.) or introduce flawed automated filtering that over-blocks.

The Code of Practice

Ofcom has been handed the thankless task of implementing and regulating all of this, not least via new Codes of Practice (CoP) to explain how services can comply with their duties to tackle harmful content. As part of that, the regulator has today published a roadmap (here) that sets out their plans for putting the online safety laws into practice (once passed), and what they expect from tech firms.

On top of that, they’ve also launched a ‘Call for Evidence‘ for “companies that are likely to fall within the scope of the online safety regime, as well as other expert groups and organisations“. Specifically, they are seeking input on the ‘first phase’ areas identified for consultation: the risk of harm from illegal content; the tools available to services to manage this risk; child access assessments; and transparency requirements.

The regulator expects the OSB to pass into law by early 2023, with their powers coming into force two months later. Within the first 100 days of their powers taking effect, Ofcom will focus on getting the “first phase” of the new regulation up and running – protecting users from illegal content harms, including child sexual exploitation and abuse, and terrorist content.

In order to help companies identify and understand the risks their users may face, Ofcom will also publish a sector-wide risk assessment. This will include risk profiles for different kinds of services that fall in scope of the regime. As part of that, they will also consult on draft enforcement guidelines, transparency reporting and record-keeping guidance.

“We will consult publicly on all these documents and expect to finalise them in spring 2024. Within three months, companies must have completed their risk assessments related to illegal content, and be ready to comply with their duties in this area from mid-2024 once the Code of Practice has been laid in Parliament,” said Ofcom. Good luck with that, at present many smaller online content companies and organisations don’t even know the OSB exist.

Some elements of the online safety regime depend on secondary legislation – for example, the definition of priority content that is harmful to children, and priority content that is legal but harmful to adults. So duties in these areas will come into effect later and timings will be subject to change.

Mark Bunting, Ofcom’s Online Safety Policy Director, said:

“We’ll move quickly once the Bill passes to put these ground-breakinglaws into practice. Tech firms must be ready to meet our deadlines and comply with their new duties. That work should start now, and companies needn’t wait for the new laws to make their sites and apps safer for users.”

The Bill does NOT give Ofcom powers to moderate or respond to individuals’ complaints about individual pieces of content. The Government recognises that the sheer volume of online content would make that impractical. Rather than focusing on the symptoms of online harm, Ofcom says they will instead tackle the causes by ensuring companies design their services with safety in mind from the start (i.e. those impractical burdens are shopped out to everybody else, where implementation costs and fears over liability risk ensuring that more censorship is the end result).

Regardless of whether or not you agree with the new law, one thing that the Government and Ofcom absolutely must get right is the communication and awareness side. It took several years for GDPR to be fully adopted and that was only after it was helped by the Information Commissioner’s Office (ICO) producing useful guides, which didn’t require you to be a lawyer in order to understand the basics. The Online Safety Law will need to do the same, as right now the legislation is an absolute minefield of complexity and ambiguity.

No doubt many people will see plenty of positives in the OSB, but at the same time its attempts to micromanage free speech, which seem to have more in common with the laws found in China and Russia than Western Europe, look set to make it harder to speak freely in the first place. In an ideal world, the Government would scale-back the bill and try to get the basics right first, before piling on masses of new and complex burdens. But instead, we seem to be heading for a Draconian censorship regime via the backdoor of cost and liability shock.