UK gov’t amendments to Online Safety Bill include criminal liability

The UK government has added further amendments to its Online Safety Bill, a piece of legislation designed to keep children and vulnerable adults safe whilst online.

In what critics see as further proof that the legislation has become increasingly unwieldy and complex, tech executives could now face up to two years in prison if they’re found to have “consented or connived” to ignore the enforceable requirements of the bill and therefore “risking serious harm to children.”

The bill was updated on Tuesday after Conservative back benchers threatened to vote against the legislation unless it included a provision that would allow regulators to prosecute social media executives who are found to have compromised the safety of children online. Earlier in the week, the Labour Party also signaled it would be willing to back the inclusion of criminal liability to the bill.

In a Commons written statement, Michelle Donelan, the culture secretary, said that “while this amendment will not affect those who have acted in good faith to comply in a proportionate way, it gives the act additional teeth to deliver change and ensure that people are held to account if they fail to properly protect children.”

Perhaps more worryingly, and bizarrely, the bill has also been updated to make “posting videos of people crossing the [English] channel which show that activity in a positive light” an online offense that would fall within the category of “propriety illegal content.”

Consecutive Conservative prime ministers and home secretaries have pledged to stop refugees crossing the English Channel in small boats, whilst simultaneously failing to introduce safe and legal routes for those needing to seek asylum.

Both amendments were introduced on Tuesday, and will be tabled when the legislation reaches the House of Lords.  

No date for the bill’s third reading has been announced yet but with both the Labour Party and rebel Conservative MPs having been seemingly placated by the amendments, it’s expected that the legislation will face minimal opposition and will soon head to the House of Lords.

Online Safety Bill criticised for increasing complexity

In its purest form, the bill aims to keep internet users safe from fraudulent and other potentially harmful content and prevent children, in particular, from accessing damaging material. However, since it was first proposed in 2019, the legislation has become increasingly bloated, causing it to face mounting criticism from industry professionals who argue that many of its elements are unworkable and could have serious implications for the UK tech sector.

Antony Walker, deputy CEO at trade association techUK, said that before the legislation was updated to include criminal liability for executives, it already included very strong incentives for compliance, including fines of up to 10% of global revenue and making senior management liable for non-compliance with Ofcom information requests.

“These are significant sanctions that create a powerful incentive for compliance,” he said. “The extension of senior management liability is not necessary to achieve the objectives of the bill.”

Walker also warned that the bill’s extension of senior management liability is extremely broad and not tied to any specific obligations, meaning investors could view taking a stake in the UK tech industry as a very open-ended risk.

“There is a real risk here that we are creating active incentives for companies not to invest and locate senior talent in the UK and as such, any proposal for Senior Management Liability needs to be clear, proportionate and workable,” he said, adding that techUK welcomed Donelan’s comments that the criminal charges would not be bought against those acting in good faith.

Meanwhile, in late 2022, when the bill was undergoing its second reading in the House of Commons, Matthew Hodgson, co-founder of Element, a decentralized British messaging app, said that the bill’s provisions for eroding end-to-end encryption could have serious consequences for UK citizens.

During the summer, the government added a new clause that mandates tech companies provide the ability to scan end-to-end encrypted messaging for child sex abuse material (CSAM) so it can be reported to authorities.

“The second you put in any kind of backdoor, which can be used in order to break the encryption, it will be used by the bad guys,” he said. “And by opening it up as a means for corrupt actors or miscreants of any flavor to be able to undermine the encryption, you might as well not have the encryption in the first place and the whole thing comes tumbling down.”