Draft Online Safety Bill

The Government’s Online Safety Bill proposes to impose duties on “user-to-user services” to deal with harmful (including both lawful and unlawful) content and to protect free speech while doing so. Unlike most operators of on-line discussion platforms, educational institutions already have legal duties in both areas: through legislation on safeguarding, preventing radicalisation, and free speech. These have been extensively discussed – in Parliament and courts, in committees and among practitioners – to find and implement an appropriate balance. It’s therefore important to work out what impact, if any, the new legislation might have.

Unfortunately this isn’t clear, at least in the most recent text published for pre-legislative scrutiny. The Government’s preparatory report in December 2020 proposed (on p.18) excluding

services managed by educational institutions that are already subject to regulatory or inspection frameworks (or similar processes) that address online harm.

“Educational Platforms” are still mentioned in the current impact assessment (para 111) but not in the draft Bill itself. That does contain an exemption for “public bodies” (Schedule 1 para 6): some activities of educational institutions fall within that term for freedom of information and data protection purposes, but the reference here is to human rights law, whose application to education is less clear.

The impact may also depend on technology. Education rarely involves providing the unstructured public discussion spaces that are the Government’s main concern. More often, discussion starts from content provided by the institution: perhaps a lecture, research idea or discussion question. Participation may be limited to members of the institution, in which case it may be exempt as an “Internal Business Service” (Schedule 1 para 4), but what about discussions shared between multiple institutions? Or public discussion of research, which is something that Governments have been keen to encourage and institutions to facilitate?

The draft Bill also makes a distinction (in Schedule 1 para 5) between comments on the original material (exempt) versus comments on other comments (not exempt). But this seems hard to implement in practice and impossible in technology. If A comments “I found this helpful” and B comments “I agree with A”, is B commenting on the original material or on A’s comment? In technology terms, the platform operator might disable threaded comments. But, as is familiar to anyone who has tried to follow the unthreaded chat alongside a video-conference, the main effect of that is merely to make discussion more confusing to readers and contributers.

There are likely to be more opportunities for clarification as the proposal develops. The current text is a draft, which a Parliamentary committee will read and comment on, probably in the autumn. The Government is then expected to publish a Bill, which will go through the usual Parliamentary process, potentially including amendments. Then, to a greater extent than many legislative proposals, the requirements will be interpreted by a regulator – expected to be Ofcom – in the light of changing circumstances. If educational institutions are brought into scope, this will need to be done carefully and clearly, to avoid creating mismatches with existing practice and law that could benefit harmful content and/or suppress legitimate and necessary free speech.

By Andrew Cormack

I'm Chief Regulatory Advisor at Jisc, responsible for keeping an eye out for places where our ideas, services and products might raise regulatory issues. My aim is to fix either the product or service, or the regulation, before there's a painful bump!

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