Regulatory cooperation
Overview
Online safety covers a huge swathe of activity much of it within the remit of other regulators with powers perhaps not as effective online as OFCOM. To protect people the OSB should, as much as it can, enable OFCOM to work with other regulators and share online safety information with them. The Bill gives OFCOM the general ability to co-operate with overseas regulators and requires consultation with the ICO on various issues. However, it is largely silent on formal, day-to-day co-operation with UK regulators, such as those that it informally cooperates with via the Digital Regulation Cooperation Forum. The FCA, for instance, whose area of regulation is just as wide, has a general duty ‘to take such steps as it considers appropriate to co-operate with others who exercise functions similar to its own’. The Government in committee has said it wants to take this one regulator at a time.
Baroness Harding and the Bishop of Manchester both spoke in favour of such an amendment in the Second Reading debate.
Analysis
The vast range of human and business activity covered online presents a complex map of potential harms. Some harms will fall into or adjacent to the purview of other regulators with domain specific expertise. The relationship established through the Digital Regulators Cooperation Forum (OFCOM/CMA/ICO/FCA) is well known. OFCOM already has working relationships with the ASA and Internet Watch Foundation and others. Within this regulatory web, OFCOM will have the most relevant powers and expertise, many regulators will look to it for help in tackling online safety issues. As we have argued in our earlier work, effective public protection will be achieved through regulatory interlock.
To protect people OFCOM should be empowered to co-operate with others and to share information. The OSB should, as much as it can, enable OFCOM to work with other regulators and share online safety information with them. OFCOM should also be able to bring the immense skills of other regulators into its own work. The Bill gives OFCOM the general ability to co-operate with overseas regulators. The ICO has been named as a consultee for OFCOM when drawing up codes of practice and various items of guidance (clauses 36, 47, 58, 69, 73, 90, 115, 138 and 146); and the Government has indicated its intention to table amendments to name the Children’s Commissioner, Victims’ Commissioner and Domestic Abuse Commissioner as statutory consultees on codes of practice when the Bill arrives in the Lords.
However, it is largely silent on formal, day-to-day co-operation with UK regulators, such as those that it informally cooperates with via the DRCF. The Communications Act 2003 limits the UK regulators with which OFCOM can share information (excluding the ICO for instance). Yet the OSB has a permissive approach to overseas regulators (Cl 103). The OSB should extend co-operation and information sharing in respect of online safety to include regulators overseeing the offences in Schedule 7 and the primary priority and priority harms to children. Elsewhere in regulation we note that the Financial Conduct Authority has a general duty to cooperate.
Amendment
Increasing safety through cooperation between relevant regulators is most easily achieved by a variant of the power in Cl 103, allowing OFCOM to cooperate with overseas regulators, but with domestic effect, inserted as new clause 103A. This is limited to co-operation in respect of harm from illegal content (including fraud), harms to children, implicitly sharing only with the regulators responsible for those matters. Other regulators can be brought in to help OFCOM through the use of the ‘Skilled Persons’ provision.