Deloitte Internet Regulation Updater

Status: The Bill is now being debated in the House of Lords Committee stage.

There are numerous potential changes which will be debated at Committee, including the new criminal offence for managers. We set out a recap on the ‘moving parts’ below.

Passage through the House of Lords so far

In early February, the Bill was heavily scrutinised with 60 speakers discussing amendments for over 5 hours.

The lengthy discussion can be split into two sections:

1. Amendments to the Bill to be introduced in the Committee Stage review (the current stage); and
2. Amendments to the Bill proposed and supported by Peers in the House of Lords, but yet to receive confirmation as to whether they will enter the Bill.

Amendments to be introduced in Committee Stage

• Protection of children: An amendment will be tabled in the House of Lords Committee Stage to enhance the protections of children by naming the Children’s Commissioner for England as a “statutory consultee” for Ofcom when codes of practice are being considered.  
• Risk assessments: An amendment will also be made to specify that category 1 companies will be required to publish risk assessments for both illegal content and material deemed harmful for children. This will increase transparency about illegal and harmful content on in-scope services and ensure that Ofcom can do its job regulating effectively.
• Excluded entities: The current wording in the OSB includes protections for recognised news publishers, content of democratic importance, and journalistic content. The House of Lords heard that sanctioned news outlets must not benefit from these protections and an amendment will be tabled in the Committee Stage to exclude entities subject to sanctions from the definition of a recognised news publisher.
• Senior manager criminal individual liability: After speculation, the House of Lords heard an amendment will be tabled to criminally sanction senior managers who have consented to or connived in ignoring enforceable requirements, risking serious harm to children. The House of Lords heard that the future wording will likely follow suit of the Irish Online Safety and Media Regulation Act 2022, whilst also following current UK wide precedent.
• Enhanced women and children protection: To strengthen protections for women controlling or coercive behaviour will be listed as a priority offence. This will mean that companies will have to take proactive measures to tackle this type of illegal content, rather than deal with them retrospectively. The House of Lords also heard that the Government will also bring forward an amendment to name the Victims’ Commissioner and the domestic abuse commissioner as statutory consultees for the codes of practice, meaning Ofcom will have to consult both commissioners ahead of drafting and amending the codes of practice.

Amendments to the Bill proposed and supported by Peers in the House of Lords, but yet to receive confirmation as to whether they will enter the Bill

There are several amendments to the Bill that Peers in the House of Lords would like to see. These include limited the Secretary of State powers over Ofcom further to ensure impartiality, and furthering protection for children so that all harmful content is removed from their access, such as blogs (which currently fall out of scope). Some of the key amendments proposed below:

• Limit Secretary of State powers: Secretary of State’s powers of guidance will be used only in exceptional circumstances, but list ranges from public safety through economic policy and burdens to business. These should be limited further to preserve Ofcom’s autonomy and freedom of expression more broadly.
• Further protection for children by removing harmful content published on blogs: Include within the Bill’s scope any internet service likely to be accessed by a child is crucial.
• Age verification, child access to pornography: Strengthen age-verification regimes to ensure children are not exposed to pornography. Proposed amendment to bring Part 3 of the Digital Economy Act into Part 5 of the Online Safety Bill.
• Triple shield “empowerment toggle” set to ‘on’: With “legal but harmful” removed from the Bill, the OSB now operates a triple shield protection format, where adults will be able to take more control over the type of content they are able to see. The “empowerment toggle” which enables adults to take control and remove harmful content from view is currently set to ‘off’, with adults having to turn it on. Several Lords proposed that the toggle be automatically set to ‘on’.
• More on kids: Amendment to provide a point of contact to bereaved families or coroners when they have reason to suspect that a regulated service holds relevant information on a child’s death, and an amendment requiring social media platforms to share information with coroners in suspected suicide cases.
• Pornography: Amendment proposes that all pornography websites and social media platforms implement third-party age verification, that there is a Bill-wide definition of pornographic content, that online pornographic content is regulated in the same way as offline and that all pornographic sites must ensure actors are genuinely over 18 so they are not facilitating child sex abuse.

Next steps

The next stage of the Bill’s journey is review and tabled amendments to be debated in the Committee stage. The Government is still confident the Bill can be passed and brought into law in 2023.

If you would like to speak to the Deloitte team supporting clients on complying with fast-paced global internet regulation, please contact:

Joey Conway, Internet Regulation Partner, Legal Lead

Nick Seeber, Internet Regulation Lead Partner

Lauren Taylor, Internet Regulation Partner

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