The Online Safety Bill hit the headlines last week, following its third and final reading in the House of Commons on 17 January 2023. Since its early stages the Bill has provoked an ongoing debate between social media safety groups, who call for the law to do more to protect children, and civil liberties campaigners, who argue that the proposed legislation impinges on the freedom of speech. The latest proposed amendment would make senior managers criminally liable for platforms’ persistent failure to protect children online. Magda Zima considers the potentially wide-ranging impact of this amendment on both companies and senior individuals.
In a statement made on 17 January 2023, Michelle Donelan, the Secretary of State for Culture, Media and Sport announced her support for the amendment that seeks to make senior managers criminally liable for breaches of the Bill’s child safety duties. Modelled on the offence of senior managers’ failure to comply with a notice to end contravention contained in the Irish Online Safety and Media Regulation Act (2022), the proposed offence is designed to “capture instances where senior managers, or those purporting to act in that capacity, have consented or connived in ignoring enforceable requirements, risking serious harm to children”. Donelan confirmed that criminal penalties for the proposed new offence would include imprisonment and fines and that it would not affect those who have acted in good faith “to comply in a proportionate way”. The proposal has caused a stir, with techUK (an industry body representing over 1,000 tech companies) issuing a statement in which it argued that the amendment “will have negative effects on how the regime will operate as well as on the wider UK digital economy”.
The Bill has started its journey through the House of Lords and is set to pass as law in the Spring 2023 parliamentary session. Whilst it is difficult to tell what the final version of the Bill and criminal offences contained in it might look like, the recent proposed amendment extends senior managers liability quite significantly, even though Donelan indicated that senior managers acting in good faith are unlikely to be prosecuted.
There is no doubt that once the Bill becomes law, companies will be grappling with reputational as well as legal issues. Those who are not yet doing so, should start considering whether their governance and compliance systems are healthy enough to withstand pressures of legal requirements imposed by the Bill. This might include having a robust legal back-up not only to make sure they act lawfully when the Bill is enacted, but also not to put their senior managers at risk of prosecution.