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14 September 2022

America acts while the UK’s Online Safety Bill remains in legal limbo

The impact of California's Age-Appropriate Design Code Act will stretch far beyond the US west coast.

By Kieren McCarthy

While the UK government has been deliberating over the future of the Online Safety Bill this summer, policymakers in the US have got down to work. California spent August passing the Age-Appropriate Design Code Act (ADCA), a piece of legislation that should significantly improve how children experience the internet.

The ADCA was passed unanimously in both California’s Senate and House and includes a range of measures to protect under-18s, including high default levels of privacy, limits on data collection by tech companies, and the reduction of addictive design features like autoplay.

In addition, companies like Facebook and TikTok will have to “prioritise the privacy, safety and well-being of children over commercial interests” – by law – and there’s a $7,500 per-offence fine attached if they don’t.

What’s more, American parents will no longer have to fiddle with complicated settings or wade through baffling explanations: the bill includes a plain English requirement.

The bill is waiting on the governor’s desk to be signed and its impact will stretch far beyond the west coast of America due to the fact that most global tech companies are headquartered in the Golden State.

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What’s most notable about this soon-to-be law, however, is that it was based on work carried out on this side of the Atlantic, with a co-sponsor of the legislation, the Democratic Assembly member Buffy Wicks, cheerfully admitting as much in press interviews last week. The ADCA, she acknowledged, was inspired by and drew heavily on the age-appropriate design code set out by the UK Information Commissioner’s Office (ICO), which came into force in September 2020, but included a 12-month transition period that meant organisations had to comply by September 2021.

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This isn’t the only piece of good work that has been produced in the UK when it comes to the impact of unregulated internet content on our youth. In fact, there has been a concerted effort by a wide range of organisations, many of them at the cutting edge of internet policy, that have used the Online Safety Bill process as a spur to develop practical solutions to real-world problems.

But while California realised the ICO code represented a solid foundation on which to build stronger online protections for young people, the UK government decided it would aim higher and construct an all-encompassing internet content behemoth that covers both children and adults and solves all our problems at once.

It’s been five years since the Online Safety Bill was first developed, but despite having moved past the committee stage in the Commons, its future looks increasingly uncertain. Everyone from academics to politicians to ex-judges have denounced its likely impact on free speech and privacy thanks to the inclusion of nebulous and undefined terms like “legal but harmful”, efforts to pull apart technological advances such as real-time encryption, and an increasing reliance on secondary legislation and unwritten regulator codes to fill in the (significant) blanks.

In a sign of just how far off track the legislation has gone, the Online Safety Bill became a political football in the Conservative leadership race, with some candidates lining up to denounce it and others – Liz Truss included – warning that it needed a revamp.

But with the cost-of-living crisis, inflation, energy bills, union strikes and Ukraine demanding more immediate attention, it’s not clear there will be time to unpick the Online Safety Bill’s problems and pass it. Worse, it could pass into law with many of the problems still in place.

There is hope. And our new Prime Minister has even identified the path forward – though she may not realise it yet. When asked about the bill and its future, Truss stressed the bill’s importance, noting that she has two teenage daughters and is very concerned about the impact of things like social media on young people’s mental health. She then went on to worry about the impact of the bill on freedom of speech and freedom of the press.

The solution, as she unwittingly identified, is to follow California’s lead and stop trying to write legislation that covers all contexts; leave adult free-speech questions behind, and focus instead on children.

There are many good things in the current bill that will work to protect children. They include adding a duty of care to tech platforms, a greater duty to report and protect against abusive behaviour and content, improved abilities for others to report worrying activity, changes in law that will free up the police to tackle serious offenders, and a range of other measures.

What’s important to recognise, however, is that many of these measures are largely untested and will require a combination of complex changes by tech companies and careful monitoring and enforcement by the authorities. The whole approach will need to be flexible to function.

The current bill is also missing something far easier to design, adjust and introduce for children: education. In its zeal to tackle troubling content, the government has tried to hammer legislative pegs into societal holes when the real answer, as teachers associations and the police will happily inform Westminster, is to educate people about the risks in the first place.

If the Truss administration can trust itself to value improvement over victory, and impress patience into its application of the law, then we may in fact end up as “the safest place in the world to be online”. But it won’t come through the current version of the Online Safety Bill.

[See also: Why everyone loses if Westminster passes poor online regulation]

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