16 January 2023

MPs must beware making the Online Safety Bill even more damaging


This week, MPs could make a deeply flawed bill much worse.

As we at the Centre for Policy Studies have repeatedly warned, the Online Safety Bill (OSB) as it currently stands poses a significant threat to free speech, privacy, security, innovation and investment in the British technology sector.

One of the core aims of the bill is to keep children safe online – something we can all emphatically agree with. But some MPs feel it does not go far enough. So a proposed amendment would hold senior employees of online firms personally and criminally liable for failure to enforce the OSB’s child safety duties. The amendment, which reportedly has the support of dozens of Tory MPs, seems like a good idea in a very superficial way – who doesn’t want to protect children, after all? But, in fact, it would undo much of the recent progress made in improving the bill by threatening free speech, deterring foreign investors, and upsetting our international partners. It could also result in children finding it harder to seek valuable resources online. 

How so? The bill’s child safety duties include obligations to prevent children from accessing content that the Culture Secretary considers particularly harmful – even if such content is legal – including content associated with suicide promotion or eating disorders. Although the bill is theoretically aimed at tech giants such as Meta, Amazon and Google, these duties would also apply to thousands of other user-to-user services (i.e. online services that allow users to generate and upload content that other users may encounter) including Wikipedia, Dropbox, Yelp, multiplayer online game providers, and many other much smaller firms.

Originally, the Government was going to apply this category of ‘legal but harmful’ speech more widely. However, it scrapped the provisions in November after objections from free speech campaigners (including the Centre for Policy Studies), who pointed out that it would incentivise online firms to adopt a safety-first approach, in turn effectively censoring huge swathes of legitimate speech.

The problem is that on child safety duties, those warped incentives remain – and would be made far worse by this amendment.

As it stands, online firms that do not adopt a robust enough safety regime could face fines of between £18m and 10% of global turnover, whichever is greater. But for some MPs, the threat of multi-billion-pound fines is not enough.

New Clause 2 (NC2), introduced by Conservative MPs Sir William Cash, Miriam Cates and Sally-Ann Hart, would make directors and senior managers at online platforms criminally liable for violations of the OSB’s child safety duties if such violations occur with the consent, connivance, or neglect of directors or senior managers. 

This amendment sounds commendably robust, but would actually make matters even worse. Indeed, Cates’ recent defence of it in The Telegraph betrays crucial misunderstandings of how online firms tackle harmful content at scale. The problem here is that online content such as images, comments and videos is not created with clear labels attached. It is possible for social media platforms to identify content that is illegal no matter the context (e.g. child sexual exploitation material). But often whether content is harmful or not depends on the context in which it appears.

It might initially seem obvious what youth suicide promotion content looks like. But a video that promotes suicide can be harmful in one context (e.g encouraging young people to end their lives) and helpful in another (e.g a mental health charity showcasing the content as part of a seminar series on youth mental health). A social media company seeking to allow the latter but not the former would likely remove both if NC2 makes its way into the final version of the legislation. The result would be fewer online resources available for children struggling with suicidal thoughts, eating disorders, harassment, abuse, and other difficult issues that require online firms to adopt nuanced and flexible content moderation practices in order to be effective.

NC2 would also result in less investment in the UK’s tech sector. Introducing the threat of criminal penalties for senior staff will make the UK stand out in the worst way possible among Western economies. At a time when the government is seeking to make the UK a global leader in innovation, threatening senior management at online firms with prison time is the wrong approach. 

In her Telegraph piece Cates notes that there is some precedent to the idea of imposing criminal penalties on social media leadership, citing the Irish Online Safety and Media Regulation Act as an example. But the Irish law is much more restrained than what Cates, Cash and Hart are suggesting. It only threatens criminal sanctions if a firm refuses to comply with a regulator’s order. More to the point, Ireland’s president only signed the Online Safety and Media Regulation Act into law last month, so we still have not had enough time to see what the effects of the criminal sanctions in the bill might be.

If the amendment is included in the final version of the bill, the Government should be prepared for repercussions if foreign technology company managers end up in the British courts. The Chinese authorities have already shown that they are willing to arrest foreigners in retaliatory measures. A few years ago, Chinese police detained two Canadians after the arrest of Huawei’s chief financial officer in Canada. It is not inconceivable that if TikTok executives were to end up in prison thanks to NC2, that British citizens in China would face arrest.  

Although well-intended, the OSB is offering a cure worse than the disease. MPs concerned about child safety online should consider the significant costs to free speech and the British economy that will accompany its passage and ensure that the bill is not made worse.

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Matthew Feeney is Head of Tech & Innovation at Centre for Policy Studies.