It’s taken six years for the Online Safety Act to become law: a painfully long time for legislation which has a primary aim of keeping up with the digital world.
Even that pace relied on a sustained effort from politicians, the police, child protection groups and even the footballing industry, each determined to deal with the harms they see online every day.
But it is finally here, and the good news – and it is good news – is that the police can now focus their resources more effectively, children will be increasingly shielded from disturbing content, and what is unacceptable in the real world will soon be unacceptable in the virtual one. It’s bad news for those who use the internet to threaten, abuse and intimidate people, and good news for everyone else. A threat to rape someone will soon be considered a criminal act under section 181 rather than a case of poor online etiquette.
The truth however is that the Online Safety Act has not been a success. Six years of debate at the highest levels has resulted in a job half done: all the detail, implementation and enforcement are yet to come, pushed off into secondary legislation to be set by current and future secretaries of state, and codes of practice to be drawn up by a regulator with a patchy track record. Worse, the government has failed to learn the biggest lesson from this whole process: our online problems are largely cultural. The solutions must be too.
As the body that will take on the impossibly complex task of deciding what content should be controlled, in what way, and for what audience – content that in many cases will have been created and posted by that same audience – it’s no coincidence that Ofcom has spent much of its time so far talking in cultural terms. It has explained how it will think through and approach these issues; how it will experiment and test solutions; how it will check in with people and organisations about the impact of its policies; and how it will adopt an iterative, learning process. This is encouraging but it’s hard to ignore the fact that understanding current society and developing rules to adequately reflect it is precisely the job of parliament and its elected representatives – not unelected regulators.
Ask scholars what is most wrong on a fundamental level with our politics and they will quickly zone in on secondary regulation and statutory instruments: lawmaking after the fact, and in the dark. The Online Safety Act comprises little else.
It also contains a dangerous piece of law – section 121 – that says the government may require companies to pre-scan content. This is something that would undermine personal privacy and security, that a future home secretary will be encouraged to turn to after the next terrorist attack, and that the security services will already have ideas about.
Oh, and the law has failed to properly consider or account for the most significant online threat to the UK at a national level: mis- and disinformation. In other words, the unintentional and intentional spread of false information, respectively. That will just have to wait until after the UK and US elections and the next iteration of artificial intelligence.
As for leaving all substantive decisions about the future of our online world to a secretary of state, rather than the democratic process, consider the fact that there have been seven secretaries of state, four prime ministers and an entire department change since the process was started. Each has tried to use the Online Safety Bill as a way to publicly reflect their ideals, priorities, even morals, and each has delayed and confused its implementation.
There was an original sin. Back in 2017 – before you could download TikTok on your phone – Karen Bradley, the culture secretary at the time, said her new internet safety green paper would “make Britain the safest place in the world to be online”. It’s a line that has been repeated throughout this process and was used again last week when the Online Safety Act finally became law. It sounds good – it’s a bold, positive statement – but do we actually want to be the safest place in the world to be online with all that would entail?
For hundreds of years, this country has accepted a balance between safety and opportunity; between individual freedom and state authority. If there’s one thing that has come out of this lengthy and messy process it’s that we don’t want to be the safest place in the world if it means limiting our ability to disagree, to push for the unpopular, and occasionally offend our fellow citizens.
When the fundamental premise was flawed, it’s no wonder the process was too.