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Why the Draft Online Safety Bill is cause for concern

By Aysem Diker Vanberg 

On 12 May 2021, the Department for Digital, Culture, Media and Sports published the Draft Online Safety Bill. The Joint Committee on the Draft Online Safety Bill has initiated an inquiry and called for evidence on to scrutinise it. Dr Aysem Diker Vanberg (Lecturer in Law at Goldsmiths), Dr Kim Barker, Dr Guido Noto La Diega and  Dr Ruth Flaherty have given written evidence on the proposed Draft Bill on behalf of Bileta (The British and Irish Law Education Technology Association).

In our submission, we raised concerns over the proposed Draft Online Safety Bill (OSB), both in terms of its substantive aim,but also its likely practical implications.

Scope is too broad 

First, the draft Bill is very broad in scope, and it is likely to have dire consequences on free speech. Section 46(3) of the Draft Bill defines legal but harmful content as “content having, or indirectly having, a significant adverse physical or psychological impact on an adult of ordinary sensibilities.”

This is a very vague definition and creates the danger of censoring a vast amount of content that is neither illegal nor harmful. Due to the hefty fines and other liabilities introduced in the Bill, platforms and service providers are likely to take down content without fully investigating whether it is harmful or not, overzealously to protect their own interests. This will have serious consequences for freedom of expression and on media plurality, encouraging the silencing of controversial and minority (opposition) opinions which are much needed in society.

Unprecedented powers to private companies 

Second, the draft Bill gives unprecedented powers to private companies in terms of moderating and censoring content which is neither desirable nor sustainable in the long run.

OFCOM ill-suited to regulate 

Third, the choice of OFCOM as the likely regulatory body for the proposed regime is concerning. OFCOM is sorely lacking in staffing, and the requisite expertise to competently undertake the required regulatory role in the context of online safety.

In the light of above, the provisions of the Draft Bill need to be amended to avoid ambiguity and over-censoring. Furthermore, given the need for a bespoke and nuanced approach to regulating online content, there is a need for a new regulatory body.

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