GPD calls on UK government not to expand criminal liability for social media managers in Online Safety Bill

In a new briefing, GPD is calling on the UK government to scrap a proposed amendment to its Online Safety Bill which would introduce jail terms for senior managers of social media platforms who are not complying with child safety duties.

The proposed amendment—originally put forward by 37 MPs in January—has been provisionally approved by the UK government, with the Secretary of State for the Department for Digital, Culture, Media and Sport stating that she will re-draft and re-introduce it in the coming months.

While protecting children from online harms is, of course, vitally important, the proposed amendment would expand the existing criminal liability provisions in the online safety bill to include non-compliance with an incredibly broad set of duties. These duties—laid out in Section 11 of the BIll—include content moderation or removal of content which may be harmful to a child and introducing age-verification mechanisms across an entire platform. Under the proposed amendment, a senior manager who is seen as non-compliant with these duties would be subject to fines or imprisonment for up to two years.

In our detailed briefing—which is also available in summarised form here—we lay out how the proposed amendment would change enforcement powers in the Online Safety Bill and how it differs, in concerning ways, from relevant provisions in comparable online safety regulations in Ireland and other likeminded countries. We explain how such an amendment would, in practice, contradict the UK’s obligations under international human rights law by:

• Failing to provide sufficient clarity for an individual to reasonably know what conduct is prohibited under the law, thus failing to fulfil the standard of legality for criminal law provisions and for freedom of expression restrictions according to article 19 of the International Covenant of Civil and Political Rights;
• Posing disproportionate risks to individuals and children’s rights to freedom of expression and access to information, including by incentivising platforms to overcensor;
• Risking users’ rights to privacy and non-discrimination by mandating the roll-out of untested and unregulated age verification and age assurance technologies at scale.

We are also concerned that, in practice, the amendment will strengthen top-down platform content governance rather than empowering children and their parents to use and navigate such platforms on their own terms, and will disproportionately burden smaller companies,  further increasing the dominance of a small number of very large platforms over the UK market and online public discourse.

We urge the UK government to retain the existing enforcement mechanisms in the current version of the bill (including fines, court-ordered business disruption measures and information and audit notices), and keep the scope of individual criminal liability for Senior Managers to non-compliance with Ofcom’s information requests.

If the UK government insists on pursuing some form of an amendment to individual criminal liability, we urge that, as recommended by the Joint Parliamentary Committee on the Draft Online safety Bill in 2021, criminal liability should only be triggered as a “proportionate last resort for the Regulator” at the end of an “exhaustive legal process”. In practice, this should mean that a senior manager would only be held criminally liable when Ofcom has exhausted all other enforcement powers to incentivise compliance, and the individual has persistently and negligently ignored clear direction from Ofcom relating to the platform’s responsibilities relating to illegal content that has been confirmed as illegal by a jurisdictional authority and that poses significant and demonstrable harm to a child or children using the service. 

Finally, if such an amendment is to be put forward, we urge the UK government to properly seek multistakeholder input in an open, inclusive and transparent fashion as they draft the text, and to subject the proposed amendment to the regular process of scrutiny and debate by Parliamentarians during Committee and Report stages.