A new Report warns that draft government legislation on online harms does not strike the correct balance between tackling harmful content and safeguarding freedom of expression.
Scrutiny by the DCMS committee of the government’s Draft Online Safety Bill has found that in its current form, the legislation is neither clear nor robust enough to tackle certain types of illegal and harmful content on user-to-user and search services.
In the Report published today, MPs call on the government to address types of content that are technically legal – including parts of child abuse sequences like “breadcrumbing” and types of online violence against and women and girls such as tech-enabled “nudifying” of women and deepfake pornography – by bringing them into scope either through primary legislation or as types of harmful content covered by the duties of care.
MPs reject a recommendation made by the joint committee to include in the Bill the establishment of a permanent committee of both Houses on the grounds that such a development would duplicate the existing constitutional role of the DCMS committee.
The committee says that the Bill, as currently drafted, has not got the balance right between protecting freedom of expression and tackling harmful content.
Proposed amendments to the Draft Bill have been a missed opportunity in making the broader definitions of harm compatible with international human rights law and address harms like covid-19 disinformation.
There are concerns that an emphasis on remedial measures rather than preventative measures on content could result in excessive takedowns by service providers to avoid penalties.
The government is also urged to provide greater clarity within the Bill on plans to provide Ofcom as Regulator with powers and users with redress. MPs describe current plans as unclear and impractical.
The committee recommends that the government respond to its concerns about the risk of content and activity that falls below the threshold of outright criminal activity but nonetheless forms part of the sequence for online child sexual exploitation and abuse.
It also suggested reframing the definition of illegal content to explicitly add the need to consider context as a factor, and that activities such as “breadcrumbing” in which perpetrators edit images to avoid content moderation, be explicitly defined.
MPs further argue that the Bill must reframe its language around considerations for freedom of expression to incorporate a ‘must balance’ test so Ofcom can interrogate and assess whether providers have duly balanced their freedom of expression obligations with their decision making.
Any plans to introduce a joint committee to oversee safety and digital regulation must also be scrapped, MPs argue.
Chair of the DCMS Committee Julian Knight MP said: “In its current form what should be world-leading, landmark legislation instead represents a missed opportunity.
“The Online Safety Bill neither protects freedom of expression nor is it clear nor robust enough to tackle illegal and harmful online content.
“Urgency is required to ensure that some of the most pernicious forms of child sexual abuse do not evade detection because of a failure in the online safety law.
“These are matters of important public debate to which we will return as the Bill makes its way through Parliament.”
