Online Safety Bill: Sweeping Ministerial Powers

The Joint Parliamentary Committee scrutinising the government’s Draft Online Safety Bill concluded its evidence sessions on 4 November. The group of MPs and Peers are now writing their report, which will include recommendations for amending the Bill to address the issues identified by those who gave evidence.

One area of particular concern to human rights groups, including ORG, is the powers given in the Bill that would allow the Secretary of State to direct and influence the work of the regulator, and therefore interfere with how the social media companies operate their services.

Amending the Code of Practice

The Bill requires OFCOM to prepare a code of practice for social media companies (clause 29). In preparing the code, the regulator must consult with (among others) the regulated companies, child protection groups, victims of online abuse, and experts in technology, public health and human rights.

However, the Bill gives the Secretary of State a veto on the code of practice. Clause 33 allows the Minister to “direct” OFCOM to modify the code to “reflect government policy.” Dame Melanie Dawes, OFCOM’s chief executive, described this as “a very broad power,” “extremely open-ended” and “beyond what we would expect to see … in an independent regulatory system.”
The Secretary of State also has the power to force OFCOM to review the code at any time.

Statement of Priorities

The Secretary of State also issues a statement of priorities for the regulator (clause 109). Such statements are described as ‘strategic’ — They are supposed to be issued once every five years and secure a form of parliamentary approval.

However, a subsequent clause in the Bill allows the Secretary of State to amend that statement if “there has been a significant change in the policy of Her Majesty’s government.”

Guidance

The Secretary of State will have additional powers to issue “guidance” to OFCOM (clause 113). Although such guidance is supposed to take the form of a single document issued once every three years, such Guidance may be issued more regularly if the Secretary of State and the regulator “agree” that it is necessary. This provision creates an open-ended invitation for the Secretary of State to become involved in the day-to-day running of the regulator.

Lack of Parliamentary Scrutiny

The Code of Practice (as approved by the Secretary of State) and the Statement of Strategic Priorities are both subject to the Negative Procedure for parliamentary approval. By this process, the document is taken to have been approved by parliament unless MPs approve a motion to reject. It is the weakest form of parliamentary scrutiny.

Ministerial Interference

The terms of clauses 33, 34, 109, and 113 subjects the regulatory framework to significant short-term political influence. This is the antithesis of independent regulation and will have several unintended consequences.

First, it hands a future authoritarian government exactly the tools it would need to systematically suppress dissent. In the meantime, these broad measures also send a terrible message to illiberal governments around the world, who will rush to insert a catch-all “government policy” clause into their own regulatory laws.

Second, the measures will incentivise a Secretary of State to intervene in the work of the regulator whenever a specific issue arose. The Bill allows the Secretary of State to announce an amendment to OFCOM’s priorities without the need for parliamentary approval. The mechanism is thus a “quick fix” that will be deployed in response to complaints in the media or from pressure groups that “something must be done” about a particular online phenomenon.

But even without the catalyst of a media campaign, the ability to update guidance, influence the code of practice and issue new priorities present the risk that Secretaries of State will tinker with the regulation. Such political interference in a regulator that is supposed to operate “at arm’s length” from the government is clearly at odds with the principle of independence.

The Wider Chill

Even if Ministers choose not to pull the political levers set out in clauses 33 and 109, the mere existence of these “very broad powers” will affect the way social media companies operate. When a minister holds a regulatory power, any comment they make on that sector carries weight with the regulated organisations. If a power is broad, and restraints on its use are weak or non-existent, then the Minister’s influence over the sector will be significant.

Ministers are well aware of this informal power to bend organisations to their will, and will often drop hints that they will use their powers, as a way of keeping ostensibly independent organisations in check. (The most obvious example of this is the way sending veiled threats about the BBC licence fee has become a political rite of passage see: Ed Vaizey in 2012, Fiona Hyslop in 2011, Jeremy Hunt in 2010, Ben Bradshaw in 2009 … and Harold Wilson in 1974).

As drafted, the regulatory powers set out in the Online Safety Bill may be directed by Ministerial diktat and untroubled by a parliamentary vote. This ministerial influence will loom large in the minds of those running social media platforms. Policy within the tech companies will be driven by attempts to divine the whims and foibles of whoever happens to be Secretary of State, rather than by the strategic purpose. The effect will be an erratic and inconsistent approach to content moderation, with an associated chill on digital rights.

Oversight

When the Draft Bill Committee addressed the issue of ministerial power in their evidence sessions, one suggestion that appeared to find favour was that a similarly constituted joint-committee could act as a permanent oversight body, akin to the Joint Committee on Human Rights.

While it would be better to have some parliamentary oversight of ministerial power, rather than none, this idea does not address the worry that a Secretary of State could use their powers on an ad hoc basis, because members of a parliamentary committee are susceptible to the same political pressures as a minister. It adds another layer of politicisation into a process that should be de-politicised.

Nor would additional parliamentary oversight address the central structural problem in the Bill, which is that the ‘harm’ that the Bill seeks to address is to be defined largely by the Secretary of State, rather than an objective, testable standard.

A more effective check on the Secretary of State’s powers is likely to come through the Courts. The Human Rights Act 1998 applies to the Department for Digital, Media, Culture & Sport, and to regulators such as OFCOM. When they regulate in a way that violates the freedom of expression or privacy rights of social media users, their decisions could be challenged (and quashed) by the Administrative Court.

However, such a process will be both slow and expensive, meaning that if the Minister or the regulator uses their powers inappropriately, many thousands (if not millions) of pieces of content will be affected before the Courts provide clarity.

The simplest solution to the problems that the Online Safety Bill seeks to solve would be to insist that regulation adheres to international human rights principles, rather than a duty of care to avoid a nebulous and shifting definition of “harm.” It is not too late to recast the Bill on these terms.

Open Rights Group recommends that:

• The Online Safety Bill should be redrafted to task the regulator with ensuring that human rights are protected online. This would include protecting children and vulnerable users from harm, as well as ensuring that free speech and privacy standards are upheld.
• Clauses 33 and 109 should be amended, to remove the Ministerial power to make ad hoc changes to the regulatory framework.
• Parliament must be given a proper vote on the OFCOMs’s code of practice, and the government’s Statement of Strategic Priorities. Clauses 34 and 110 should be amended to ensure that they are subjected to parliament’s ‘affirmative procedure.’