Online Safety Bill: Lords to scrutinise more than 300 amendments next week

Peers will assess a stack of amendments to reduce the power of the Secretary of State, protect freedom of expression and guard encryption

Next week, members of the House of Lords will scrutinise more than 300 amendments and recommendations made fellow Lords to the Online Safety Bill (OSB).

Among these amendments are measures to reduce the power of the Secretary of State over the regulator Ofcom; protect freedom of expression; mandate auditing of age verification systems; and protect end-to-end encryption (E2EE).

Ofcom

Peers addressed concerns voiced by many about the decision-making power granted to the Secretary of State, which while reduced compared with previous versions, remains considerable.

Conservative peer Baroness Stowell and Labour's Lord Stevenson tabled a series of amendments designed to "remove the Secretary of State's power to issue unlimited directions to Ofcom on a draft code of practice".

Rather than directing the regulator to act, the Secretary of State would be able to provide non-binding advice via an exchange of "a maximum of two letters."

Lord Knight for Labour wondered whether there are sufficient funds available to Ofcom to fulfil its online media literacy duties.

Another amendment by Conservative peer Lord Kamall would require that service providers report to Ofcom explaining how they will mitigate negative impacts on freedom of expression, and to "carry out regular risk assessments to check on curtailment of freedom of expression on their platform."

Freedom of speech

Critics have noted that definitions of free speech in the bill are vague and the obligations of services to protect it unclear.

Lord Stevenson added a probing amendment, noting that the government "has not opted to implement a single comprehensive duty on Category 1 services to protect the right to freedom of expression."

Lord Kamall added an amendment to clarify that "platforms' obligations to protect free speech should: (a) be enhanced for users with protected characteristics under the Equality Act 2010, and (b) entail express limitations on the infringement of users' rights online."

Other peers requested changes around definitions of falsehoods, including a new category for "harmful health misinformation and disinformation" being hosted on platforms.

Crossbencher Baroness Fox requested clarification of the definition of content deemed to be "of democratic importance."

In a statement sent to Computing, Dr Monica Horten, policy manager, freedom of expression at Open Rights Group, welcomed the focus on freedom of expression.

"In its current form, [the OSB] threatens every person's right to freedom of expression and privacy. In particular, the Bill could allow the scanning of everyone's private messages, potentially undermining the encryption that keeps us safe," she said.

End-to-end encryption

Providers of end-to-end encrypted messaging apps WhatsApp and Signal have been worried enough by the implications of the OSB to threaten to leave the UK if forced to weaken their encryption or introduce backdoors for law enforcement. Measures such as client-side scanning for illegal material could theoretically make that obligatory.

Conservative Lord Moylan introduced an amendment to protect such E2EE services, saying that such measures should not be included "if the effect of that requirement would be to require the provider of the service to weaken or remove end-to-end encryption applied in relation to the service or part of the service."

Liberal Democrat Lord Clement-Jones suggested a similar amendment, "intended to ensure risk assessments are not used as a tool to undermine users' privacy and security."

An amendment by Lord Stevenson would require any such action against a provider to be reviewed every six months and removed if found to be unnecessary.

Michelle Stanistreet, general secretary of the National Union of Journalists, fears that in its current form the OSB risks undermining the security of confidential communications between journalists and sources.

"As companies signal their refusal to comply with weakened privacy standards platforms will be forced to adopt, information used to inform public interest journalism remains under grave threat," she said.

"Government must act now, introducing amendments that ensure protections are afforded to journalists and their encrypted messages."

Age verification and safety settings

Under the OSB, platforms' terms of service will need to explain how they limit access to children what technology they age verification use.

Baroness Kidron, a crossbench peer and chair of children's charity 5Rights Foundation, wants to see independent scrutiny and auditing of these age verification and validation systems. She also introduced an amendment requiring providers to assess risks on their platforms in line with the "four Cs of online risks to children" - content, contact, conduct and contractual/commercial risks.

Baroness Morgan, a Conservative, wanted social media providers to ensure that the default options are the safest for users "in regard to suicide, self-harm, eating disorders and the abuse and hate content already determined to be harmful."

Peers from all parties and none weighed in, seeking to ensure protections will be in line with the UN Convention of the Rights of the Child and other international standards.

Baroness Fox wanted to see smaller tech companies exempt from some of the OSB's provisions. Currently, it's estimated that 25,000 businesses could be in scope, at a considerable cost to comply.

Checks and balances

A number of the amendments tabled called for more parliamentary oversight with built-in review periods, including a probing amendment by Lord Stevenson to future-proof the legislation, asking for periodic reviews to "apply to online experiential environments (i.e. the metaverse)."

Jessica Ní Mhainín, policy and campaigns manager at Index on Censorship, welcomed the clarifications and safeguards introduced by the peers.

"The thresholds for illegal content in the current version of the OSB are too low and risk ‘legal but harmful' content being taken down, despite the removal of this phrase from the bill," she said.

"The current bill will lead to the worst of both worlds, with perfectly legal speech being removed for millions of British citizens and real criminals being let off as valuable evidence is deleted before police and courts can act.

"Peers must amend this badly thought through bill to stop the creation of a new age of censorship."

During the committee stage, Lords will scrutinise the suggested amendments to different sections of the OSB in more detail than in previous sessions. The first sitting in on 19th April, while the final session is scheduled for 11th May, after which the amended bill will return to the Commons.