As the Online Safety Bill is set to return to Parliament on 17 January 2023, ARTICLE 19 urges members of parliament to protect freedom of expression online and reject the proposed amendment that seeks to hold senior managers criminally liable for violating child safety duties.
The Online Safety Bill (the Bill) is expected to complete its final stage in the House of Commons this week before moving to the House of Lords. As ARTICLE 19 has stated repeatedly, many aspects of the proposed legislation constitute a serious threat to freedom of expression and human rights online.
One of the main issues with the Bill is the disproportionate sanctions regime it seeks to establish. Under the Bill’s current version, Ofcom will have the power to fine companies that fail to comply with their duties up to ten per cent of their annual global turnover and block UK users from accessing non-compliant platforms. In addition, senior managers may be held criminally liable for the failings of their company in responding to Ofcom’s information and data requests. As ARTICLE 19 has previously warned, the severity of this sanctions regime will provide a strong incentive for companies to over-censor their users to limit their liability exposure.
At least 37 MPs have now introduced an amendment to the Bill that would make matters worse. The proposed amendment seeks to expand criminal liability for senior managers of regulated entities by introducing a prison sentence of up to two years if they fail to comply with the child protection duties under the Bill.
If passed, this provision would further incentivise platforms to remove any controversial content that could potentially be accessed by children to avoid criminal charges – with little regard for users’ human rights. This is particularly true given the vague concepts and definitions that underlie the child protection duties under the Bill. Platforms are required to mitigate and manage risks related to categories of harm and to prevent children from encountering so-called ‘primary priority content that is harmful to children’. These categories will not be defined by Parliament but by the Secretary of State, who will have the power to expand the list without adequate legislative oversight. Beyond freedom of expression concerns, the proposed offence is thus too vague to comply with the principle of legal predictability that should govern criminal law. In addition, the proposed offence does not require evidence of criminal intent but may be committed through ‘consent or connivance’ or even ‘any neglect’.
Finally, we believe that, like the other excessive sanctions under the Bill, the offence is contrary to one of the purported objectives of the Bill: to ensure accountability of the largest platforms. Indeed, it is likely to deter smaller players that are unable to afford expensive legal advice from entering the UK market, thus further increasing dominance by very few platforms over the market and ultimately their power over public discourse and users’ freedom of expression.
Beyond concerns about the proposed amendment, we remain concerned about the Bill overall. We reiterate that the Bill is an extremely complex and incoherent piece of legislation that will undermine human rights and rule of law and will ultimately be ineffective in achieving its stated goal of making the internet a safer place. We urge UK legislators to not shy away from the sweeping overhaul that this Bill requires in order to fully protect all human rights online.