Does the Bill protect fundamental rights?

There is a duty on platforms to consider freedom of expression and privacy when deciding on and implementing safety measures and policies. This is a change from the language in the draft Bill (which referred to “safety policies and procedures”). Precisely what is meant by this is not clear – is it any step taken to mitigate as a result of a risk assessment (including potentially a decision not to include a feature)? Or is it narrower? The former could be too broad – potentially including purely commercial decisions – but there is still the question of when the obligation kicks in.

Another change from the draft Bill is in the language relating to privacy. As regards the obligation on all service providers, rather than referring to the right itself (as has been done in the case of freedom of expression), the text now refers to “any statutory provision or rule of law concerning privacy that is relevant to the use or operation of a user-to-user service.”[1]  This seems a narrower formulation, arguably excluding some considerations that are protected by Article 8 ECHR. Of course, one might argue that providers, which are not public bodies, are not directly bound by human rights obligations. But in that instance, why is there a direct reference to freedom of expression (rather than statutory provisions and rules of law as for privacy)? It is still not clear where the balance is to be struck between the rights of vulnerable users oppressed (and silenced) by sub-criminal speech and bad systems versus the speech of other individuals and companies. The extra obligations on Category 1 providers in relation to freedom of expression and privacy (without the difference in language found in the duties on all providers) remain, though they are – as is the case for the general duty – only obliged to consider those rights in relation to their users and not, for example, the victims of image-based sexual abuse or racial abuse (assuming victims not to be users of the platform).

The Bill contains an obligation on OFCOM to include in its annual report a statement on steps and processes to ensure that OFCOM’s functions have been exercised compatibly with Articles 8 and 10 ECHR. This was not in the draft Bill. It is good to see this obligation introduced but, while both Articles 8 and 10 are mentioned, the other civil and political rights are not. Other rights could have relevance online. It would be good for OFCOM to report on these broader considerations where appropriate; for example, when revealed by transparency reports or super complaints.

[1] Clause 19(3) https://publications.parliament.uk/pa/bills/cbill/58-02/0285/210285.pdf