LONDON — The United Kingdom wants to police the internet. Shame the European Union got there first.
Brexit was supposed to let Britain do things quicker. But less than a month after the 27-member bloc’s Digital Services Act (DSA) went into force, London is still struggling to cobble together its own version of the rulebook, known as the Online Safety Bill.
On Monday it tried again, with Britain’s Digital Secretary Michelle Donelan presenting a tweaked bill to parliament. It got the backing of MPs, but faces fresh committee scrutiny before heading to the House of Lords. And the path to a settled law still looks far from certain.
The bill, which seeks to make Britain “the safest place in the world to be online” has not only been a casualty of the country’s political instability — it has also proved a divisive issue for the country’s governing Conservative Party, where a vocal minority of backbenchers still view it as an unnecessary limit to free speech.
“Far from being world-leading, the government has been beaten to the punch in regulating online spaces by numerous jurisdictions, including Canada, Australia and the EU,” said Lucy Powell, the opposition Labour Party’s shadow digital secretary.
Powell said the latest version of the Online Safety Bill was also at risk of getting stuck due to “chaos in government and vested interests,” adding that it was imperative the bill pass through the legislature by April, when the current parliamentary session ends.
Much of the disagreement over the bill has centered on rules policing so-called legal-but-harmful content. That’s been largely dropped from the latest version of the planned law, after Prime Minister Rishi Sunak’s government bowed to pressure from right-wing MPs within his own party, who argued that the provisions threatened free speech.
In the previous iteration of the bill, Ofcom, the country’s telecommunications and media regulator, was on the hook for enforcing rules that required social media giants to take action against potentially harmful but technically legal material like the promotion of self-harm.
The government’s scrapping of legal-but-harmful content hasn’t been universally welcomed, however. Nadine Dorries, Donelan’s predecessor as digital secretary, proposed the provisions and has griped that they’d already passed parliamentary scrutiny before the bill was paused.
Long and winding road
Britain’s attempts to regulate the internet really got going under Theresa May, who became prime minister in the wake of Britain’s vote to leave the European Union, and as lawmakers were beginning to become more tech-skeptic.
The Tories’ May 2017 election manifesto promised that “online rules should reflect those that govern our lives offline,” but by the time Boris Johnson published his 2019 election offering, the Conservatives were also promising to protect the most vulnerable from accessing harmful content. Under Johnson’s close ally Dorries, a version of the legislation tackling legal-but-harmful content started to make its way through Parliament, before it was put on pause after he was ousted by Tory MPs.
Johnson, the former prime minister, often seemed caught between his own personal free speech philosophy and his populist instincts of attacking Big Tech.
The summer Tory leadership contest to replace Johnson reignited the debate, with contenders promising to look again at the law before the legal-but-harmful content provisions were ultimately watered down. Donelan replaced Dorries, becoming the seventh culture secretary since Brexit.
The EU’s path to its online rulebook has been quicker. In part that’s because questions over free speech haven’t yet become the political touchpaper that they now are in the Anglosphere. Nevertheless the EU mostly side-stepped the issue by keeping its own rulebook more squarely aimed at purely illegal content, and the European Commission has made it clear public it does not want to create a so-called “Ministry of Truth.”
That means the EU hasn’t had to contend with the deep divisions the Online Safety Bill has prompted in the U.K., especially among the governing Tories.
Instead, Brussels’ institutions have been mainly aligned on the key aspects of its framework, the DSA. The European Parliament and Council of the EU — representing the 27 European governments — largely supported the European Commission’s cautious approach to create rules to crack down on public-facing content illegal under EU or national laws like child sexual abuse material or terrorist propaganda.
When it comes to legal-but-harmful content, the EU’s approach requires very large online platforms — those with more than 45 million European users — to assess and limit the spread of content like disinformation and cyberbullying under the watch of regulators. Europe’s rules also have gone further than those on the other side of the channel by including mandated risk assessment and audits for tech giants like Meta and Alphabet so that they can be held accountable for potential wrongdoing. In the U.K., the main enforcement has been left to Ofcom via investigations.
Disagreements, when they came in Europe, have been on the edges, rather than at the core of the debate. Rows focused on limits to targeted ads and the level of obligations for online marketplaces like Amazon to carry out random checks on dangerous products on their platforms. In another example, some EU countries like France and Germany pushed and failed to force a 24-hour deadline for online platforms to take down illegal content.
Not just free speech
In the U.K., it’s not just free speech issues that have proved controversial. The EU set out separate rules aiming to clamp down on child sexual abuse material online, but the U.K. poured similar provisions into the Online Safety Bill.
That means high-stakes questions over how and whether the monitoring requirements undermine privacy — especially in encrypted messaging apps like WhatsApp — are being dealt with separately in the EU. But in the U.K. they’ve been thrown into the same mix as wide-ranging free speech debates.
Differences between the rulebooks also raise the prospect of costly regulatory misalignment. While the U.K. bill slaps general monitoring requirements on the tech companies themselves, that’s explicitly banned by the EU. Last month, the British regulator and its Australian counterpart created a new Western coalition of online content regulators, though failed to invite any EU counterparts to those discussions. Only Ireland’s watchdog joined as an observer.
“This is about setting up our international engagement in expectation of setting up our rules,” Melanie Dawes, Ofcom’s chief executive, told POLITICO when announcing that initiative. “The success of this is about bringing together international partners.”
Clothilde Goujard reported from Brussels.