Online Harms bill could be undermined by loopholes

The government’s long-awaited Online Harms Bill is due to be presented to Parliament this year; the opposition and committees have expressed frustration at delays to the legislation. A white paper laying out the plans was published more than two years ago, proposing significant fines for negligent companies.

According to the government, Ofcom – which will assume responsibility for regulation – will have the power to fine companies up to £18m or 10 per cent of global turnover (whichever sum is higher) for failing their statutory duty of care to users. Platforms that do not comply with the rules can be blocked from being accessed in the UK. Ofcom will require companies to use “targeting technology” to identify and remove illegal material.

The government has said that it will create a world-leading and unified set of regulations to make the UK the safest place in the world to be online.

However, the 5Rights Foundation report has criticised the government’s plans for attempting to “minimise the regulatory burden on tech companies” rather than prioritising child safety online. It claims that the bill in its current form contains many loopholes, ignores significant harms to children, and only covers 3 per cent of all companies.

It said that the bill’s scope is too narrow and should cover all digital technology that impacts children, not just services which host user-generated content or facilitate interaction between users (social media and messaging platforms). It also called for a lowering of the threshold for “harm” to include less obvious forms of harm, such as financial or consumer-based risks.

Its report also warned of “differentiated expectations”, which could lead to loopholes being created as companies remodel themselves to elude regulation rather than take on the burden of making their services safer to use. It called on the government to include smaller platforms, which need “greater support to comply with regulation, not permission to harm”.

“An Online Safety Bill worthy of its name must keep children safe wherever they are – however big or small the company, whatever the nature of the product and whatever environment they use it in,” said 5Rights Foundation chair Baroness Beeban Kidron.

Writing in the report, Kidron said: “The stated purpose of the Online Safety Bill is to prevent harm. Yet this is undermined by exemptions and caveats that offer a complicated regulatory landscape with places for companies to hide. The responsibilities envisioned in the concept of a duty of care have been limited by restricting the scope.

“The government defines harm as extreme and individual, when, in reality, many harms of the digital world are incremental, repetitive, cumulative, and impact on individuals, groups, and on society more broadly. There is a worrying lack of clarity about the status of the proposed measures, with a complex set of duties, codes, and provisions that may or may not have the full force of law.”

A Department for Digital, Culture, Media and Sport spokesperson said: “Our world-leading tough Bill will set a global standard for safety online. It will target platforms where the risks lie and companies will have a strict duty to stop children being exposed to harmful content.

“There will be no loopholes and they will face tough sanctions including multi-billion pound fines if they do not step up.”