What the latest government U-turn means for the Online Safety Bill

Social media bosses will be held criminally liable – if they can be prosecuted – says Sean O’Grady

Age verification, taking content down and parental controls could be used to protect children from harm (PA)

In the face of a near-certain defeat in the Commons on the Online Safety Bill, the Sunak government has caved in to demands from Tory rebels to alter the draft legislation. It is the latest in a series of U-turns on key areas of policy. Now at the report stage in the Commons, the government has negotiated an agreed amendment with the rebels. The bill, as altered, will now almost certainly become law in the coming weeks.

What did the rebels secure?

Led by Tory MPs Andrea Leadsom, Bill Cash, Priti Patel and Iain Duncan Smith, and with support from Labour, the 50 or so dissidents demanded tougher sanctions on the executives of online platforms who fail in a statutory duty to protect children from online harms, such as, for example, exposure to material related to bullying, self-harm, terrorism, pornography or other dangers. Failure to fulfil a legal obligation could mean a custodial sentence of two years. This personal criminal liability is the essence of the new addition.

What will it mean in practice?

That is more difficult to say. The bill proposes to make managers of sites hosting user-generated content, including social media platforms, take “proportionate measures” to stop children seeing harmful material. The draft law says this could be through measures such as age verification, taking content down, and parental controls.

The rebels were keen to make sure that tech managers who fail to safeguard children would be potentially subject to a custodial sentence of up to two years, and the government has now apparently conceded this.

In the case of some platforms such as WhatsApp, the whole point of the closed nature of a network is that others cannot easily see what is being said and done. Indeed, it may be practically impossible to detect harms being done in real time. As in some high-profile tragic cases, the material a child victim has witnessed only becomes known after they have been harmed or, in extreme cases, lost their lives.

What are the benefits?

The public is understandably concerned about the volume and nature of hurtful and toxic messages, videos and images circulating online, and the near-total absence of regulation. The aim of the legislation, as the name suggests, is to reduce instances of online bullying and abuse, particularly of children, without intruding too far on rights and freedoms.

What are the drawbacks of the new amendment to the bill?

Practicality. An online platform can be so large as to be impossible to police effectively and many – Twitter, for example – rely on users to report violations of their codes or of the law. Moderation may be doubly difficult to achieve in text-based programmes where users enjoy anonymity and use coded language. Company executives might argue that they are being punished disproportionately for crimes out of their control. Others might feel that such state-mandated regulation, via Ofcom, infringes rights to free speech in the widest sense.

The new amendment might deter some from either working in the sector or refusing to sell or operate their platforms in the UK. In reality, it might take a series of test cases in the courts to test the limits of personal criminal responsibility in particular sets of circumstances, such is the relative novelty of legislating in this area.

Will it affect the provision of services?

Possibly. Aside from the risk of incarceration for executives in companies such as Facebook or TikTok – where they can be identified within the jurisdiction of the UK – the bill will add to the cost of running services. Age assurance requires companies to ascertain when users were born, and enforce an age limit of say 13 years for sensitive content. The stricter and more intrusive the controls and checks, the more chance potential users will be put off signing up. That, in turn, will hit traffic volumes, advertising and subscription revenues and profitability. It would almost certainly lead other less scrupulous platforms and users to evade the checks.

Ofcom will also have the power, in theory, to fine companies up to £18m or 10 per cent of their worldwide turnover (about £10bn for Meta, which owns Facebook, WhatsApp and Instagram). The regulator may also block uncooperative sites from operating, though enforcing that might prove tricky. At some point it may become clear that Meta, Alphabet, Snap Inc and the Chinese-owned TikTok are rather beyond the reach of Ofcom and Whitehall.

What happens next?

Having “persuaded” culture secretary Michelle Donelan and Rishi Sunak over the weekend of the justice of their cause, the rebels’ clause on criminal responsibility has been added as the bill goes to the next stage of scrutiny in the House of Lords. The exact wording is awaited. Either way, Ms Donelan says the bill will make social media bosses “criminally liable for their actions … no longer will faceless executives be able to pass the buck and hide behind corporate loopholes”.

What does all this tell us about the government?

Simply that having a Commons majority of 70-plus is no longer a guarantee of getting any given piece of legislation through. Previous U-turns have been on wind farms, local housing targets and the Schools Bill, while Truss-era policies such as fracking and tax cuts were also rapidly reversed. The Online Safety Bill itself, introduced almost a year ago and once the pride of Nadine Dorries, has been subject to almost continual tweaking.

It all adds to the sense of lack of purpose as the Tory party tries to settle down after the upheaval of 2022. It also indicates a party as divided as ever, pathologically prone to plotting and with a variety of factions in its ranks – including the original Eurosceptic ERG that is almost a right-wing party within a party, complete with a lost leader, Boris Johnson. None of that augurs well for unity and consistency as the general election approaches.