Online Safety Bill: Parliament and DCMS proceed with separate scrutiny and inquiry into the draft online safety law

There is now further clarity on the timing of pre-legislative scrutiny of the draft Online Safety Bill, following the establishment by the House of Lords and the House of Commons of the Joint Committee on the Draft Online Safety Bill on 23 July 2021. This committee is required to report by 10 December this year, and expects to issue a call for written evidence in the near future.

Separately, the Department for Digital, Culture, Media and Sport (DCMS) Sub-Committee on Online Harms and Disinformation has launched a new inquiry into the government’s approach to tackling harmful online content in the draft Online Safety Bill and invited comments on its terms of reference.

Pre-legislative scrutiny

The joint committee will focus specifically on the provisions of the draft Bill, and is likely to suggest drafting amendments. Responding to its forthcoming call for evidence is a good opportunity for companies affected by the Bill to participate in the legislative process by commenting on its provisions.

If the committee reports by December, as required, redrafting and amendments are likely to continue into mid-2022 (depending on the work of the DCMS sub-committee) and the Bill might not be granted Royal Assent until 2023, with its first provisions coming into force as late as 2024 or even 2025.

Areas that would benefit from further scrutiny by the committee and potential drafting changes – as identified in our previous Insight – include codes of practice, "qualifying worldwide revenue", changes to exempt services and "regulated content", and the definition of illegal content. (We expect that certain changes are likely to be carried out and would encourage any companies concerned by the changes being introduced to submit their concerns to the committee.)

DCMS launches inquiry

The DCMS sub-committee also announced on 27 July 2021 the launch of a new inquiry into the issues covered by the Bill and invited submissions to be made on the committee's terms of reference, which are that it should address the following areas:

• How has the shifting focus between "online harms" and "online safety" influenced the development of the new regime and draft Bill?
• Is it necessary to have an explicit definition and process for determining harm to children and adults in the Online Safety Bill, and what should it be?
• Does the draft Bill focus enough on the ways tech companies could be encouraged to consider safety and/or the risk of harm in platform design and the systems and processes that they put in place?
• What are the key omissions to the draft Bill, such as a general safety duty or powers to deal with urgent security threats, and (how) could they be practically included without compromising rights such as freedom of expression
• Are there any contested inclusions, tensions or contradictions in the draft Bill that need to be more carefully considered before the final Bill is put to Parliament?
• What are the lessons that the government should learn when directly comparing the draft Bill to existing and proposed legislation around the world?

Osborne Clarke comment

While we now have clarity on the timing of pre-legislative scrutiny, it is clear that this bill isn’t going anywhere fast. There are still a lot of complex issues to work through – and that’s before they really get stuck into the detail. (For further coverage and comment, read our OSB in Focus series.)