Published on: by Neil Brown
There’s nothing like waking up to find people telling me about proposed new legislation which, if passed, would geoblock people in the UK from so many online services, end numerous services in the UK, and criminalise myriad people in the UK.
Today’s proposal is the Social Media Platforms (Ofcom Licensing) Bill.
The gist of the proposal is that anyone who “operate[s] a social media platform that is available to users in the United Kingdom” commits a criminal offence unless they obtain a licence from Ofcom, and comply with the terms of that licence.
Is it a private members bill, and is unlikely to pass - more a declaration of intent than a serious attempt at legislating - so there is a risk that, in responding to it as a serious proposal, one gives it more credibility than it deserves.
Nevertheless, here are three quick, pre-breakfast, thoughts, based on the text of the bill here.
The objective of the bill is not clear
My starting point, in anything like this, is “what is the problem that the legislation is trying to solve?”.
Here, I just do not know.
I cannot get to the point of trying to assess whether it is the best way of trying to solve the problem (although this is incredibly unlikely), because I cannot tell what the problem is.
I can’t imagine legislation making a pub or cafe owner criminally liable for regulating their customers’ conversations
The Online Safety Act 2023 already started down the very slippery slope of regulating people’s conversations, through the guise of requiring platforms to do things in respect of those conversation / interactions. Ostensibly it is not content regulation yet, in practice, that is really the outcome that is sought.
The same is true here, and this bill is even more concerning.
I cannot imagine someone attempting to pass a law telling pub landlords or cafe owners that they - on pain of criminal liability - :
must take all reasonable and proportionate steps to ensure—
- that conversation in the pub/cafe complies with the laws of the United Kingdom;
- that conversation in the pub/cafe is not materially harmful to users or to the public interest;
- that conversation in the pub/cafe does not incite criminal conduct, violence, hatred or public disorder;
- that systems are in place to minimise the dissemination of materially false or misleading information;
- that users are provided with transparent information concerning the identity and authenticity of persons having conversations in the pub/cafe;
- that harmful conversation identified by Ofcom is removed, restricted or otherwise addressed within such period as Ofcom may specify.
(All I have done here is replace “content made available on its social media platform”, from clause 4 of the bill, with “conversation in the pub/cafe”, and “content” with “conversation” in (f).)
I don’t know how someone might go about some of these things?
How does the provider of, say, a running forum make a determination of whether a conversation contains misleading information?
Is a campaign against facial recognition cameras in public places “harmful … to the public interest”? Who decides?
How does a forum for vulnerable people who wish to share sensitive information comply with (e), to provide “transparent information concerning the identity and authenticity” of other users, without causing users harm and stifling their speech? How does this interplay with a user’s rights to freedom of expression, privacy, or data protection?
The scope of the bill is unclear but probably very, very broad
The lack of a conjunction at the end of clause 3(a) renders the scope unclear.
Does a platform have to meet both (a) and (b) to be in scope? Or either (a) or (b)?
If it is an “or”, then the scope is very broad indeed.
If it is an “and”, then it is slightly more narrow, but still incredibly broad.
I do not know what “other than those with whom they communicate privately” is trying to get at. Does it include only direct messaging between a small number of participants? Is a large, but closed, group chat “private”? If I run a fedi service for my family, but everyone can see each others’ posts, is that private communication?
There is no carve-out for small, low risk, services. Off the top of my head, I’d have to obtain a licence for several services that I run at home. This is an existing problem with the Online Safety Act 2023, but since the impact of this bill would be to criminalise me unless I obtained (and presumably paid for? since Ofcom could not run the infrastructure needed to staff etc. this for free) a licence.
Right. Breakfast time. Oh my.