Does OFCOM remain independent?
The UK should ensure the same institutional standards to defend free speech as it does in other areas of media regulation: OFCOM’s independence is central to that. The United Kingdom is a member of the Council of Europe. The Council of Europe recognises the importance of regulatory authorities as contributing to the fostering of an environment favourable to freedom of expression and supporting diversity and pluralism. Independence of the authority is key to it being able to carry out its responsibilities effectively. ‘Recommendation Rec (2000) 23 to member states on the independence and functions of regulatory authorities for the broadcasting sector’[1] sets out the conditions for such independence (principles re-affirmed in a 2008 Declaration). Respecting these principles is an important part of the UK’s international commitment to free speech, limiting the ability of the executive to interfere with broadcasting regulation. It is a form of self-restraint by the party in power from which they will benefit when in opposition. It allows the regulatory authority the space to take decisions based on the available evidence.
We suggest that a similar standard should apply in online safety regulation as it does in other regulatory contexts. Yet, in addition to the approval process for Codes, the draft Bill contains a number of provisions that allow the Secretary of State to issue directions to OFCOM as to how to fulfil its duties. Notably, clause 33(1)(a) allows the Secretary of State to modify a code of practice to “reflect government policy”. While clause 33(3) contains some limitations on the exercise of this power, there is a concern that it might undermine OFCOM’s independence. Removal of this provision is, in our view, desirable and would reaffirm of regulatory independence.
[1] https://www.coe.int/en/web/freedom-expression/committee-of-ministers-adopted-texts/-/asset_publisher/aDXmrol0vvsU/content/recommendation-rec-2000-23-of-the-committee-of-ministers-to-member-states-on-the-independence-and-functions-of-regulatory-authorities-for-the-broadcas