UK confirms removal of Online Safety Bill’s ‘legal but harmful’ clause

The UK government has completed a major revision to controversial but popular online safety legislation that’s been in the works for years — and was finally introduced to parliament earlier this year — but has been paused since this summer following turmoil in the governing Conservative Party.

In September, new secretary of state for digital, Michelle Donelan, said the reshuffled government, under newly elected prime minister Liz Truss (who has since been replaced by another new PM, Rishi Sunak) would make certain edits to the bill before bringing it back to parliament.

The draft legislation is now due to return to the House of Commons next week when lawmakers will resume scrutiny of the wide-ranging speech regulation proposals.

The government says the changes its made to the Online Safety Bill are in response to concerns it could lead to platforms overblocking content and chilling freedom of expression online — largely focused on adult safety provisions related to so-called ‘legal but harmful’ content, which included mitigation requirements like transparency obligations but did not actually require such material to be removed.

Nonetheless the controversy and concern over this aspect of the bill has been fierce.

In a press release announcing the latest raft of tweaks, the Department for Digital, Culture, Media and Sport (DCMS) and Secretary of state for digital issues, Michelle Donelan, wrote: “Any incentives for social media firms to over-remove people’s legal online content will be taken out of the Online Safety Bill. Firms will still need to protect children and remove content that is illegal or prohibited in their terms of service, however the Bill will no longer define specific types of legal content that companies must address.

I promised I would make some common-sense tweaks and I have.

This is a stronger, better bill for it. It is focused where it needs to be: on protecting children and on stamping out illegality online.

Now it is time to pass it.

— Michelle Donelan MP (@michelledonelan) November 29, 2022

“This removes any influence future governments could have on what private companies do about legal speech on their sites, or any risk that companies are motivated to take down legitimate posts to avoid sanctions. New measures will also be added to make social media platforms more transparent and accountable to their users, as a result of amendments the Government will propose.”

“Parents and the wider public will benefit from new changes to force tech firms to publish more information about the risks their platforms pose to children so people can see what dangers sites really hold. Firms will be made to show how they enforce their user age limits to stop kids circumventing authentication methods and they will have to publish details of when the regulator Ofcom has taken action against them,” DCMS added.

Over the weekend the government revealed another, related amendment to the legislation — saying it would make encouraging self harm a criminal offence, thereby taking that type of problem content out of the ‘legal but harmful’ bucket and meaning platforms will have a legal duty to remove it.

It also recently announced measures to beef up laws against abuse of intimate imagery, including criminalizing the sharing of deepfake porn without consent, among other recent changes.

DCMS is pitching its new approach with the Online Safety Bill as providing what it frames as a “triple shield” of online protection which is most strongly focused on children but still offers measures intended to help general consumers shield themselves from a range of online harms — with social media firms legally required to 1) remove illegal content, 2) take down material in breach of their own terms of service, and 3) provide adults with greater choice over the content they see and engage with.

Provisions in the revised bill could, for example, enable adult users to opt to see a filtered feed if they wish to limit their exposure to content that may be unpleasant to them but which does not meet the bill’s higher bar of being strictly illegal.

The government has also retained measures aimed at empowering adults to be able to block anonymous trolls — via using tools that the biggest platforms will need to offer to let them control whether they can be contacted by unverified social media users.

“To make sure the Bill’s protections for adults online strike the right balance with its protections for free speech, duties relating to ‘legal but harmful’ content accessed by adults will be removed from the legislation and replaced with the consumer-friendly ‘triple shield’,” DCMS wrote. “The Bill will instead give adults greater control over online posts they may not wish to see on platforms.

“If users are likely to encounter certain types of content — such as the glorification of eating disorders, racism, anti-semitism or misogyny not meeting the criminal threshold — internet companies will have to offer adults tools to help them avoid it. These could include human moderation, blocking content flagged by other users or sensitivity and warning screens.”

There has been a lot of misreporting on the return of the Online Safety Bill. Here are my thoughts.

— Damian Collins (@DamianCollins) November 29, 2022

Donelan mounted an aggressive defence of the changes on BBC Radio 4’s Today program this morning, claiming the government has strengthened provisions to protect children at the same time as adapting it to respond to concerns over the bill’s impact on freedom of expression for adults.

“Nothing is getting watered down or taken out when it comes to children,” she argued. “We’re adding extra in. So there is no change to children.”

Platforms will still be required to prevent children from being exposed to ‘legal but harmful’ speech, she also suggested — arguing that much of the content of greatest concern to child safety campaigners is often prohibited in platforms’ own T&Cs and the problem is they do not enforce them. The legislation will require platforms to live up to their claims, she said.

Earlier in the program, Ian Russell, the father of Molly Russell — the 14-year-old British schoolgirl who killed herself five years ago after viewing social media content promoting self-harm and suicide on algorithmically driven platforms including Instagram and Pinterest — expressed concern that the bill is being watered down, questioning the government’s late stage decision to remove the ‘legal but harmful’ duties clause.

“It’s very hard to understand that something that was important as recently as July — when the bill would have had a third reading in the Commons and [this legal but harmful content was] included in the bill, it’s very hard to understand why that suddenly can’t be there,” he told the BBC.

Discussing why he feels so strongly about risks attached to ‘legal but harmful’ content spreading online, Russell referred to the inquest into his daughter’s death which surfaced evidence from the platforms that showed she had engaged with a lot of such content — giving an example of a pencil-style drawing of a sad girl captioned with the text “who would love a suicidal girl” as one of the pieces of content she had viewed that had particularly stayed with him.

“That in and on its own isn’t necessarily harmful but when the platforms’ algorithms send hundreds if not thousands of those posts or posts like it to someone — particularly if they’re young and vulnerable — then that content had to be regulated against,” he argued. “The algorithms have to be looked into as well. And that’s what the concern is.”

Russell also accused platforms of not taking strong enough measures to prevent minors from accessing their services. “The platforms have not taken seriously the advances in age verification and age assurance that tech now has — they’ve not paid enough attention to that. They’ve sort of turned a blind eye to the age of people on their platforms,” he suggested.

While not embracing the government’s edits to ‘legal but harmful’ duties in the bill, Russell did welcome DCMS’ drive to dial up transparency obligations on platforms as a result of revisions that will require them to publish risk assessments — when previously they may have had to undertaken an assessment but would not have been required to publish it.

Asked by the BBC about Russell’s criticism of the removal of the ‘legal but harmful’ clause, Donelan said: “Content that is harmful or could hurt children but is not illegal — so is legal — will still be removed under this version of the bill. So the content that Molly Russell saw will not be allowed as a result of this bill. And there will no longer be cases like that coming forward because we’re preventing that from happening.”

She also argued the revised bill would force platforms to enforce their own age restrictions — such as by making them explain how they are stopping minors from accessing their services.

“We’ve strengthened the bill,” she reiterated. “We’ve now introduced clauses where companies can’t just say yes we only allow children over 13 to join our platform — then they allow ten year olds and actively promote it to them. We’re stopping that from happening — we’re saying no, you’ve got to enforce that age restriction, you’ve got to tell parents how you’re doing that and everybody else. We’re saying you’ve got to work to the regulator with the children’s commissioner when you’re producing the guidelines and putting them in practice.”

Asked how the government can be sure platforms will really ban underage users, Donelan pointed to what she described as the “very punitive sanctions” still in the bill — including fines of up to 10% of global annual turnover, adding: “If a company breaches any aspect of the bill, including for children, they could face fines… [as large as] billions of pounds. That’s a really big incentive not to breach the bill.”

She said the government has also strengthened this aspect of the bill — saying companies “do have to be assured of the age of their users”.

“Now we’re not saying you have to use ‘X specific tech’ because it will be out of date by next week — this bill has to last the test of time — what we are saying is you could use a range of age assurance technology or age verification technology but whatever you do you’ve got to make sure you know the age of these users to know whether they’re 14 or whether they’re 45 — so you know the protection have got to be in place and I think that’s the right approach.”

This component of the bill is likely to continue to face fierce opposition from digital rights campaigners who are already warning that biased AIs will likely be the tech that gets applied at scale to predict users’ age as platforms seek to meet compliance requirements — and that the legislation therefore risks automating discriminatory outcomes…

Culture Secretary, Michelle Donelan, told @BBCr4today that the Online Safety Bill is silent on what technology can be used for age-verification. The role of age-gating the Internet will be filled by AI that’s known for biased and discriminatory outcomes. #BlockTheBill #privacy

— Open Rights Group (@OpenRightsGroup) November 29, 2022

Another notable revision to the bill the government confirmed today is the removal of a “harmful communications” offence that free speech campaigners had warned risked having a major speech chilling effect based on a disproportionate weighting on someone taking offence to public speech.

Offences on false and threatening comms have been retained.

“To retain protections for victims of abuse, the government will no longer repeal elements of the Malicious Communications Act and Section 127 of the Communications Act offences, which means the criminal law will continue to protect people from harmful communications, including racist, sexist and misogynistic abuse,” DCMS further notes.

There will also be a requirement for major platforms not to remove content that does not breach the law or suspend or ban users where there has not been a breach of their ToS — as another measure the government claims will help bolster freedom of expression online.

Further amendments are aimed at dialling up protections for women and girls online, with the government saying it will add the criminal offence of controlling or coercive behaviour to the list of priority offences in the Bill.

“This means platforms will have to take proactive steps, such as putting in measures to allow users to manage who can interact with them or their content, instead of only responding when this illegal content is flagged to them through complaints,” per DCMS.

Another change recognizes the Children’s Commissioner to the face of the bill as a “statutory consultee” to the regulator, Ofcom’s, codes of practice, which platforms will be required to cleave to as they seek to demonstrate compliance — casting a key child safety advocate in a core role shaping compliance recommendations.

The government has tabled some of the slew of latest amendments to the Bill in the Commons for Report Stage on December 5, when it returns to parliament — but notes that further amendments will be made at later stages of the Bill’s passage.

Commenting in a statement, Donelan added:

“Unregulated social media has damaged our children for too long and it must end.

I will bring a strengthened Online Safety Bill back to Parliament which will allow parents to see and act on the dangers sites pose to young people. It is also freed from any threat that tech firms or future governments could use the laws as a licence to censor legitimate views.

Young people will be safeguarded, criminality stamped out and adults given control over what they see and engage with online. We now have a binary choice: to get these measures into law and improve things or squabble in the status quo and leave more young lives at risk.”

UK confirms removal of Online Safety Bill’s ‘legal but harmful’ clause by Natasha Lomas originally published on TechCrunch

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