A joint committee of MPs and peers should be established on a permanent basis to provide ongoing oversight of the Online Safety Bill and its implementation, and criminal sanctions for technology company executives should be expedited, digital secretary Nadine Dorries has said.
Addressing the joint Online Safety Bill committee, which was launched in July 2021 to scrutinise the government’s forthcoming online harms legislation, Dorries said the fast-paced nature of change in the technology sector means the Bill is exceptional in the level of Parliamentary scrutiny required going forward.
Under the Bill’s statutory “duty of care”, tech companies that host user-generated content or allow people to communicate will be legally obliged to proactively identify, remove and limit the spread of both illegal and legal but harmful content – such as child sexual abuse, terrorism and suicide material – or they could be fined up to 10% of their turnover by the online harms regulator, Ofcom.
The government has claimed the Bill will safeguard freedom of expression, increase the accountability of tech giants and protect users from harm online.
“The Bill requires Ofcom to publish accounts and to publish an annual report,” Dorries told MPs and peers. “It requires us to review the Bill in two to five years. It also requires of Ofcom to appear before the DCMS committee when it is scheduled – I don’t see any of those requirements as enough.
“I think that there is a role for a committee like yours, in the same way that the Human Rights Joint Committee does, to continue to work to scrutinise this Bill moving forward… the question I’ve asked repeatedly is, this Bill holds platforms to their own terms and conditions – what if they decide the day after this Bill becomes an Act to change their terms and conditions? That is why I think it’s important… that we keep this watching brief on this Bill going forward.”
Dorries added that while social media platforms have claimed over many years that they do abide by their own rules, it is clear that they do not. “I think it would be an incredibly bold platform to decide, after all they’ve said in the past, that they would change [terms and conditions and] the whole basis on which they operate,” she said.
Ensuring compliance
To ensure greater compliance with the provisions of the Bill by tech companies, Dorries further added that criminal liability for tech company executives – which is included in the draft version but with a grace period of two years to allow them to prepare for the changes – should be introduced within “three to six months” of the Bill’s assent.
“That is subject to being probed and examined by Parliamentary counsel and others, but that’s certainly what I’m looking to put in the Bill,” she said.
“Platforms know now, they know today. They know what they’re doing wrong… why would we give them two years to change what they can change today – remove your harmful algorithms today and you will not be subjected, named individuals, to criminal liability and prosecutions.”
In the Autumn Budget and Spending Review for 2021, announced in late October, more than £110m was allocated for the government’s new online safety regime.
In response to Computer Weekly’s request for a breakdown of how the funds will be used to support the implementation of the Bill, the Department for Culture, Media and Sport (DCMS) said it has nothing more to add at this time.
Government powers under the Online Safety Bill
Under the draft Bill, which was published in May 2021, the secretary of state currently has the power to direct Ofcom to modify the Code of Practice to ensure that it reflects, among other things, government policy.
However, committee chair Damien Collins noted this would be done through a “negative SI”, or statutory instrument, meaning once the change is signed off by the relevant minister (in this case Dorries), it becomes law unless it is actively annulled by Parliament within 40 days.
Although any MP can table a motion for annulment (referred to as a “prayer”) within this period, the government is under no obligation to debate it in the House of Commons and, according to the Institute for Government, while the “negative procedure gives Parliament a theoretical veto over secondary legislation, in reality this power is rarely used.”
According to Collins, “if it was done through affirmative SI, which would then mean a vote and a debate, that would be a more transparent process”.
In response, Dorries said the need for government to act quickly justified the Bill’s use of negative SI procedures: “There are people that said… this Bill should not be conflated with David Amess’ murder – that is not the case. David’s murderer was radicalised online. Therefore it is not right to make the assertion that those two instances should not be conflated, they are very much linked.
“I think those powers, there may be times when they would be needed under a negative SI, when it looks towards other things that happen online which are dangerous,” she said.
When further challenged by Collins on whether the negative SI should be part of normal procedure, rather than an exception, Dorries responded that her department would look into whether this aspect of the Bill should be changed.
Dorries was also challenged on her own record of causing harm online, including hostile Tweets directed at journalists, as well as the sharing of doctored videos of Labour leader Kier Starmer and posts by former English Defence League leader Tommy Robinson.
“The reason that all of this matters… is because somebody less benign than you might be secretary of state. The Bill gives enormous powers to the secretary of state, and the boss of Ofcom specifically said some of the powers that you had were too strong,” said MP John Nicholson.
In response, Dorries said the powers granted by the Bill would be “absolutely necessary” for it to properly function, adding the need for an ongoing committee to scrutinise the Bill is also necessary because it is the role of Parliament, not Ofcom, to say when the powers of a secretary of state are too powerful.
