Access to data
Overview
Under clause 136, OFCOM must produce a report exploring access to data by independent researchers within two years of this section of the Bill coming into effect, but there is no obligation on the part of the regulator or service providers to take this any further. No arguments have been put forward for this extended timeframe and related uncertainty. Enabling academic and civil society researchers to access data, under certain conditions, is vital to ensure that the fast-moving landscape of online harms is understood – and the regulatory framework can be adapted, if necessary – in a timely fashion. The proposed amendments would bring the timeframe for OFCOM’s report forward and mandate the production of a code of practice on data access soon after; they would also create adequate powers for the Secretary of State to create the necessary mechanisms, organisational changes and processes to enable access to data. This is necessary because unforeseen requirements to remove undue legal barriers or create new safeguards may arise during the creation of the code of practice and related consultation process. Given the potential risks and impacts of such changes, these should be given the highest level of parliamentary scrutiny.
Analysis
We support proposals for an amendment which aims to introduce a duty for regulated platforms to enable access to information and data from regulated services by approved independent researchers under certain conditions.
It is accepted that independent researchers should have access to relevant information from service providers in order to research online safety matters. Under new Clause 136 of the current draft Bill, OFCOM must produce a report exploring such access within two years of this section of the Bill coming into effect, but there is no obligation on the part of the regulator or service providers to take this any further. No arguments have been put forward for this extended timeframe and related uncertainty.
In contrast, the arguments to speed up the process are strong. Greater access and availability of data and information about systems and processes would improve the understanding of the online environment. We cannot rely solely on OFCOM to act once problems arise when new issues can be spotted early by experts found elsewhere. At present, companies decide who accesses data, how much of it and for what purposes. Only the companies themselves can see the full picture, and the effect of this opacity is that it has taken years to build up the case for the Online Safety Bill. Without a greater level of insight enabling quality research and harm analysis, policymaking and regulatory innovation will stagnate.
Increasingly, researchers who need access to this information and data are not only based at academic institutions, but also within civil society organisations. Civil society plays a crucial role in identifying harmful content and poor behaviour, as work by the NSPCC, Centre for Countering Digital Hate, Institute for Strategic Dialogue, Antisemitism Policy Trust and numerous other organisations prove. These and other groups currently achieve this with access to minimal information and ongoing difficulties. Access to publicly available information from online platforms is routinely curtailed, often invoking the protection of users.
The EU’s Digital Services Act (DSA) gives a broad range of researchers access to data, including civil society non-profit organisations from civil society dedicated to public interest research. The DSA sets out in detail the framework for vetting and access procedures, creating an explicit role for new independent supervisory authorities – Digital Services Coordinators – to manage this process.
Amendment
Given the constraints on the legislative time frame for the Bill, Clause 136 cannot set this level of detail. We support an amendment to establish fundamental principles for access to happen. Instead of requiring OFCOM to produce a report in two years, and possibly some additional guidance, an amended clause would mandate OFCOM to produce a code of practice in a much shorter timeframe. Clause 136 should make clear that civil society organisations are included, and require Ofcom to publish a code of practice on how data access will work in practice after its report. The report should be published within six months of the Bill coming into effect.
The proposed amendments should also create adequate powers for the Secretary of State to create the necessary mechanisms, organisational changes and processes to enable access to data. This is necessary because unforeseen requirements to remove undue legal barriers or create new safeguards may arise during the creation of the code of practice and related consultation process. Given the potential risks and impacts of such changes, these should be given the highest level of parliamentary scrutiny.