The Online Safety Bill will be taken forward

The news will understandably be dominated during the coming days and weeks by the death of Queen Elizabeth II. But the work of the new Liz Truss government will continue behind the scenes. One of the Prime Minister’s least experienced Cabinet members is the new Secretary for Culture, Michelle Donelan. It is Donelan who will take the critical decisions about the controversial Online Safety Bill (OSB), which will grant wide-ranging powers to media regulator Ofcom to control social media content for the first time. Former Ofcom Legal Director and executive and SMB consultant, Trevor Barnes, explains what the crucial interactions between Donelan and Ofcom are likely to be in the coming weeks on the Bill.

Before being made Culture Secretary, Michelle Donelan, 38, had just two days’ experience of being a full member of Cabinet – the shortest ever in British history. Appointed Education Secretary on 5 July after Nadhim Zahawi was made Chancellor, she resigned two days later with other ministers when it was clear Boris Johnson had lost the support of many Tory MPs.

Reportedly wishing to be a politician since the age of six and a speaker at the Conservative Party conference when only 15, Donelan is a highly ambitious MP and (also like Liz Truss) flexes her views to catch the prevailing political wind. A Remainer for example before the 2016 Brexit referendum, she has since consistently voted against UK membership of the EU in Parliament.

In the coming couple of weeks, Donelan will make sure one of her first meetings will be with the Chief Executive of Ofcom, Melanie Dawes. And a key item on the agenda for that encounter will be the future of the OSB. Ofcom’s deadline for responses to its Call for Evidence from tech companies and other stakeholders on the Bill has remained 13 September 2022.

It is now beyond doubt that the OSB will go ahead in some form. We know because Liz Truss herself – no less – confirmed this in Parliament in PMQs on 7 September. In her reply, she underlined: ‘What I want to make sure is that we protect the under-18s from harm but we also make sure free speech is allowed, so there may be some tweaks required.”

You can be sure that these ‘tweaks’ will be a central point of the Donelan/Dawes discussion. It is now almost a racing certainty that the core change will be more than a ‘tweak’ – rather a serious work of surgery.

As first reported here in a previous blog (3 August 2022), well before Liz Truss was chosen by the Conservative Party as its new leader, people at Ofcom working in the online team were suggesting that it might be wise for the incoming Culture Secretary to ditch from the Bill the controversial ‘lawful but harmful’ category of internet content. This would leave the illegal and child protection categories, and – importantly – the provisions forcing social media companies to crack down on fraudulent advertising.

This radical change to the Bill has many advantages, both practical and political. How to regulate  ‘legal but harmful’ material on the internet has been a nightmare for Ofcom from the beginning. Effective regulation depends to a great extent on clear definitions and consistency. ‘Legal but harmful’ risked failing on both counts. Although the draft Bill includes a clause in theory protecting freedom of expression, this protection is diffuse. There are serious concerns that tech companies would understandably err on the side of caution and proactively take down lawful but offensive material – especially that which incurred the wrath of social media activists.

And the political advantages of simplifying the Bill in this way are legion. There would be fewer attacks on the revised OSB from free speech advocates – who are on both the Left and Right of politics. A shorter piece of legislation will be more likely to reach the statute book by the next general election, probably in late 2024. Like any Prime Minister, Liz Truss would like to be able to point to as many achievements as possible under her premiership before that poll, including an Online Safety Act.

There would be critics of this approach. But their criticism will probably have little traction. The public is most concerned that, for example, under-18s are protected from pornography websites, and the general public from terrorist material, hate speech and fraudulent advertising. Obviously, some lawful material on the internet may cause harm. But this might be added to an Online Safety Act later, once the initial legislation has bedded down and its effectiveness has been assessed.

We do not know definitively what ‘tweaks’ Donelan will ask to be made to the OSB. But her background provides clues as to her instincts and sense of direction. Before she became the MP for Chippenham in 2015 she worked in marketing (including an intriguing stint on Worldwide Wrestling Entertainment).

While universities minister under Boris Johnson she criticised ‘cancel culture’ and ‘woke bullies’ on campus. In amending the OSB, Donelan will want to ensure she can present herself, and Liz Truss, as defenders of free speech in the continuing culture wars, while introducing meaningful new protections for voters and under-18s from harmful material on the internet. She will instinctively be attracted to cutting out the ‘legal but harmful’ category from the OSB.