The UK government has confirmed it will expand the criminal liability powers contained in draft online safety legislation currently being passed by Parliament to prevent platforms from deliberately breaching child safety rules.
The current version of the (already heavily amended) online safety law, which will return to parliament today for the report stage ahead of third reading, includes criminal liability for executives who fail to comply with their duties to the regulator, Ofcom, with information that it asks of them.
However, the government has now given in to pressure from some of its own backbenches – as well calls from online child safety activists — to include comprehensive provisions on criminal liability by holding senior management of platforms within its scope criminally liable for repeated violations of child safety obligations.
This means that Ofcom will be given additional powers that – at least on paper – could lead to jail time for social media bosses who deliberately breach child safety rules.
The Telegraph broke news of the impending government reversal late yesterday, reporting that Michelle Donelan, the secretary of state in charge of digital affairs, had accepted amendments to the bill that would make senior executives at tech companies criminally liable for persistent breaches of their duty of care to children.
A spokesperson for the Department of Digital, Culture, Media and Sport (DCMS) confirmed the development, telling businessroundups.org that DCMS Secretary Paul Scully will set out details in a speech to parliament this afternoon. The development follows meetings between Donelan and backward Conservative Party MPs, who in recent weeks had pushed for a broader amendment to expand criminal liability for senior executives.
The DCMS spokesperson said backbench MPs have agreed to withdraw their amendment in exchange for the government introducing the amendment to expand criminal liability provisions.
The opposition Labor party had expressed support for the backbenchers amendment, meaning the government could have suffered an embarrassing defeat on the bill – hence it withdrew to avoid an uprising.
Backbench Conservative MPs have argued that the legislation needs more teeth to rein in powerful technology giants and ensure children are protected from exposure to harmful content, with MPs pointing to other sectors – such as financial services or construction – already facing criminal liability are for senior execs and wonder why the tech industry executives should get a free pass.
In other recent changes late last year, the government revised the bill to remove a clause related to legal but harmful content – in response to concerns the legislation could have a chilling effect on free speech.
However, that move was criticized by campaigners for child safety and appears to have fueled backseat disagreement over criminal liability.
The wording of the government amendment has not yet been published, but the DCMS spokesperson stressed that the extended criminal liability will only apply to repeated violations of child safety obligations in the legislation. Ofcom’s research and enforcement of child safety rules.
A kind of ‘Elon Musk liability clause’, if you will.
The backbenchers’ proposed amendment would have gone further than that — expanding criminal liability for each violations of child safety duties. Thus, the government appears to have won a concession by holding liability only for intentional infringements. And the DCMS spokesman suggested the amendment is “more targeted and proportionate to the risks” than the one proposed by rebel MPs.
The liability will extend to senior management “if they repeatedly and knowingly disregard Ofcom’s enforcement notices in relation to their safety engineering duties,” the DCMS spokesperson also told us, adding: “It will be in line with other liability provisions for senior managers who are currently elsewhere in the law… The liability of senior managers was currently already in the bill if they did not provide information to Ofcom when it asked for it.
“We are confident that it will not affect the UK’s attractiveness as an investment country. Because it won’t punish responsible and reactive tech bosses who are focused on making sure their platforms are safe. This is about people deliberately and willingly going against what Ofcom tells them to do to make their sites safer for children,” the spokesperson also claimed.
“So it gives tech bosses a lot more certainty about when this could be used. And… as always, with the fines that are in the bill – with Ofcom’s power to fine them, with Ofcom’s power to block access to sites [that break the law], these are a set of powers that Ofcom has that it is very clear that it will only use in the worst case scenario. In the extreme cases where it needs to use these powers, it will, but it has a bunch of other options to use for that point.
As the deadline for tabling amendments has passed in the House of Commons, the government’s amendment to the bill will be tabled next month when scrutiny moves to the House of Lords – so full details are yet to be seen.
We asked DCMS whether the expanded criminal liability provision for senior management will only apply to larger platforms (so-called “Category 1” services) — or whether all services within its scope (i.e. potentially tens of thousands of companies and/or entities providing user-to-user services) are at risk, but the spokesperson could not confirm at this time how broadly the change will apply.
While child safety campaigners are likely to welcome the government’s change of mind about strengthening the criminal liability of tech bosses, digital rights groups are likely to be more cautious about risks to free speech, with groups like the ORG also warning about the impact of laws imposing mandatory age restriction on websites on users’ ability to access online content and on people’s privacy.
