Toby Young Toby Young

The good, the bad and the ugly of the new Online Safety Bill

The new version of the Online Safety Bill seems, on the face of it, to be an improvement on the previous one. We’ll know more when it’s published – all we have to go on for now is a DCMS press release and some amendments moved by Michelle Donelan, the Digital Secretary and architect of the new Bill. The devil will be in the detail.

Let’s start with something that hasn’t got much coverage today, but which I think is important. Plans to introduce a new harmful communications offence in England and Wales, making it a crime punishable by up to two years in jail to send or post a message with the intention of causing ‘psychological harm amounting to at least serious distress’, have been scrapped.

That’s good news because, as Kemi Badenoch said in July, ‘We should not be legislating for hurt feelings.’

The bad news is, the new communications offence was intended to replace some of the more egregious offences in the Communications Act 2003 and the Malicious Communications Act 1988. The communication offences in the Malicious Communications Act are still going to be repealed, but not S127 of the Communications Act.

But this change does solve a problem I’d previously flagged up about the previous version of the Bill. It obliged the large social media platforms (Facebook, Instagram, Twitter, etc) to remove content in every part of the UK if it’s illegal in any part of the UK (‘offence means any offence under the law or any part of the United Kingdom’). So if it’s illegal to say something in Scotland, in-scope providers would have to remove it in England, Wales and Northern Ireland.

That created a problem because the new harmful communications offence would only have replaced some other communications offences in England and Wales, not in Scotland and Northern Ireland.

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