November 10, 2021

The Online Safety Bill – reducing complexity, establishing a foundation duty

By Professor Lorna Woods, Professor of Internet Law, University of Essex, William Perrin, Trustee, Carnegie UK and Maeve Walsh, Carnegie Associate

The draft Online Safety Bill already risks being too complex to be good regulation. The Bill will get more complicated as it is amended by pre-legislative scrutiny and then the amendments themselves are amended in the House itself during passage. On top of this is a plethora of statutory instruments, yet to be drafted, some of which deal with important aspects of the regime.  Complexity is a recurring theme in evidence to the Joint Committee and indeed almost anywhere the Bill is discussed.

Former First Parliamentary Counsel Richard Heaton wrote in a 2013 paper, When Laws Become Too Complex, on the problems of complex legislation:

‘Excessive complexity hinders economic activity, creating burdens for individuals, businesses and communities. It obstructs good government.  It undermines the rule of law. … A short  Act  that  requires  the  user  to  go  to  a complicated set of regulations is not, overall, a simplifying measure.

A simpler Bill will lead to better outcomes for victims. Others benefit too: legislators, who will need to scrutinise and amend it further; companies (and their lawyers) who will need to comply; the regulator, Ofcom, who will take enforcement decisions based on it; and civil society organisations advocating for victims.

Complexity is a strategic problem with this draft Bill. Pre-legislative Scrutiny is designed to tackle strategic issues and should address restructuring for simplicity.

We are concerned that, under pressure to get on with the Bill the Whitehall machine will dig in behind the current draft, thinking that the least risky route. This is a classic sunk-cost fallacy.  The low-risk route is to restructure and simplify the Bill now, to make the regime better able to support future amendments and to serve for decades as the basis for clear, predictable regulation.

First Parliamentary Counsel suggested a route to less complex legislation in general:

‘A more collaborative approach, combined with simplified internal procedures, could facilitate the work of all those involved in the preparation of legislation, ultimately mitigating the manifestations (and causes) of complex laws.’

We were struck by DCMS Ministers’ sincere commitment, during their appearance at the Joint Committee on the Draft Online Safety Bill, to team working. In that spirit, Carnegie UK offers a set of amendments that simplify and strengthen the Bill – a table of amendments and a redrafted Bill are attached. Determined leadership from the new DCMS ministerial team, working with a wide range of partners, can deliver a Bill that is both simpler and stronger.

The Carnegie UK amendments address issues that we and others have raised in evidence to the Joint Committee:

  • Reordering of the Bill so that the purpose of the Bill, its objectives, duties of OFCOM, definitions of harm and duties and actions flowing from them are in a logical order. This greatly improves legibility, making the duties easier to comply with and therefore strengthens the Bill.
  • Introducing a broader, but still limited definition of harm to address (a) issues mentioned in the original draft Bill that go beyond harms to an individual; and (b) similar matters presented to the Joint Committee.
  • A new duty of care that acts as a foundation to strengthen the two focussed duties about illegal content and content harmful to children. The new duty addresses harmful company systems. The foundation duty provides a broad base from which parliament and the regulator can focus on harms of particular concern. Such priority harms are contained in a new Schedule on the face of the Bill, increasing certainty around scope, and should allow a faster start-up of the regime after Royal Assent.
  • More flexible powers for the regulator to apply rules in a targeted manner against risk profiles, based on evidence and due process. This removes the need for crude categories of companies based purely on size and the need for a specific adult harm duty. The Bill is therefore greatly simplified and becomes more targeted and effective
  • Trimming back the powers of the Secretary of State to bring them in line with international norms.

Taken all together this results in a radical simplification of the bill and makes the regime stronger and more future proof. We are most grateful to Professor Lorna Woods for her work on these amendments.

The Bill is strengthened by:

  • A clear flow from objectives through to action far simpler than the draft Bill
  • The broadening of the definition of harm from the individual to cover issues raised in the Bill but not previously included in that definition (democracy, media, economic) and harm to groups of people with protected characteristics while retaining sufficient focus to be workable.
  • The improvement of harm discovery and mitigation by services and the regulator through a broadly based foundation duty and risk assessment.
  • The inclusion of search in the foundation duty, ironing-out some of the unnecessary repetition in the Bill between the various categories of service.
  • Deterring wilfully blind risk assessments by companies that claim they can see no harm so therefore do not need to mitigate it.
  • Ensuring that the duty is focussed on the role of the platform in the outcome of harm rather than simply on content takedown.
  • Ensuring that harm arising from the platform service’s manipulation of content is front and centre.
  • Explicitly linking the service providers’ own risk assessments and mitigation to take account of risks OFCOM has identified.
  • Stronger protection of freedom of expression and privacy through a dedicated freedom of expression and privacy risk assessment.
  • Greater protection of journalistic content by thorough assessment of which services such duties should apply to, not just the largest.
  • Ensuring that services understand their use by children before they assess risks.
  • A properly risk-based approach to application of special duties to where they are needed rather than limiting them to crude size-based categories.
  • A better system for parliament and the regulator to focus on priority harms than defining types of content.
  • A better system to identify future priority harms based on evidence and subject to Parliamentary oversight.
  • Not repealing the measures Parliament has put in place to protect children on video sharing platforms and in the Digital Economy Act for which the government has not provided alternatives

The Bill is simplified by:

  • Significantly improved comprehension through restructuring, clearly identifying the objectives of the regime.
  • Reduction in the number of powers to make Statutory Instruments and their replacement by more streamlined, effective measures that respect the independence of the regulator.
  • Harmonising the many risk assessments to simplify and eliminate gaps.
  • The foundation duty removing the need for a specific duty on harms to adults.
  • Clarity of a broad risk assessment by the regulator and service providers.
  • Simplifying the complex interplay between content and systems in the draft Bill.
  • Governing a duty with reasonableness, well understood in duties of care and ‘appropriateness’ as context is vital.
  • Focussing on how harms arise and are amplified by service design rather than trying to define or identify harm in different types of content.
  • A single process for adding priority harms.
  • Greater clarity on priorities by listing them in a schedule.
  • Avoiding repetition of matters already covered by OFCOM’s General Duties such as proportionality and better regulation.

Professor Woods’ paper on fundamental freedoms provides a human rights context to this overall approach, highlighting the fact that a systems approach is less intrusive than one which focusses on content take-down.

Our aim is to illustrate that a major restructuring is possible. We have followed through significant consequential amendments but our resources are finite and we haven’t worked through every single one. Similarly, in such a complex Bill our work will not be error-free and we would gladly hear of any spotted and suggestions for improvement.

As always, we welcome feedback on our work and will be happy to brief organisations and decision-makers on what the adoption of this new approach would mean for their areas of interest. Please contact us at [email protected]