The publication of a draft Online Safety Bill has enabled two parliamentary committees to engage in detailed pre-legislative scrutiny. The conclusions of a special joint committee were discussed in earlier posts by its Chair, Damian Collins and Alex Walker. Here, Alex analyses the findings of the second report on the draft bill, authored by the DCMS Committee, and analyses the points of contention between the two reports.

Parliament has been giving close attention to the landmark Online Safety Bill since it was published in draft in May 2021. In December, the joint committee set up to consider the draft bill published its report. I considered its recommendations in the first part of this two-part series on the scrutiny of the draft bill. The Digital, Culture, Media and Sport (DCMS) Select Committee has since published its take on the draft legislation. As the DCMS committee commented, it is welcome that the bill was published in draft, and is receiving such comprehensive pre-legislative scrutiny. Whilst the government is of course not required to accept the recommendations of the committees, failing to address gaps they have both identified would not be a constructive response to the pre-legislative process.

One such gap (highlighted previously on this blog) is that of online harms to democracy. Whilst they diverge on a number of points, the DCMS committee and the joint committee share the analysis that this is a serious issue which the bill should address. In this piece, I consider the DCMS committee’s proposals to address online threats to democracy and look at how they differ from those of the joint committee. Both approaches to improving this aspect of the bill are worthy of careful consideration and the government should not use the points of difference as a way to avoid taking action.

Content that undermines democracy should be in scope

Constitution Unit Deputy Director Alan Renwick and I argued in written evidence to the DCMS committee that online harms to democracy should be addressed in the legislation. The committee agreed. The government’s own 2019 Online Harms white paper detailed the dangers that online activity such as the viral spread of disinformation could pose to democracy. But the measures the white paper set out to address this issue were later abandoned, leaving the draft bill with a considerable blind spot. Both the DCMS committee and the joint committee concluded that leaving this gap unfilled would be a mistake. However, the two committees recommended different changes to the legislation.

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The latest edition of Monitor, the Unit’s regular news update on constitutional issues, was published today. The Brexit vote happened more than five years ago, but many of the the worrying constitutional trends that characterised the years that immediately followed the referendum remain a part of public life. Here, in the lead article from Monitor 79, Unit Director Meg Russell and Deputy Director Alan Renwick express serious concerns about a repeated lack of parliamentary scrutiny, proposed changes to the way elections are overseen and conducted, standards in public life, the proper role of government, and the effect of all four on the perception of our public servants.

Each new issue of Monitor for the last three years has reported on torrid developments in UK constitutional politics. Brexit, the 2019 general election and COVID-19 all raised new and difficult questions about democratic governance and the balance of power between our institutions. As the political dominance of the pandemic fades, and matters tentatively approach something closer to ‘normal’, constitutional controversy nonetheless remains centre stage.

A major question raised in the previous Monitor, and bubbling for some time before that, is whether the UK is witnessing a kind of ‘democratic backsliding’, whereby elected politicians gradually dismantle the checks and balances that constrain their power. The UK government’s legislative programme, and its wider activities as reported in this issue, have done little to soothe those fears. A valuable new online tracker, launched in October by the Public Law Project, allows for systematic exploration of constitutional developments throughout the period of the Johnson government. 

The action that achieved greatest cut-through was the government’s extraordinarily ill-judged attempt to change how allegations of misconduct against MPs are dealt with, in response to dissatisfaction with the outcome of a given case – that of Conservative former cabinet minister Owen Paterson. The mechanism proposed for the review – a Commons committee with a government majority – was also entirely inappropriate. The ensuing controversy was still raging as Monitor went to press.

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In April 2019 the Commons Digital, Culture, Media and Sport select committee established a sub-committee to continue its inquiry into disinformation and data privacy in the digital age. Michela Palese considers the motivations underlying the establishment of this sub-committee, its stated priorities, and how it can help confront the challenges and threats to our democratic processes arising from online campaigning.

Last month the Digital, Culture, Media and Sport (DCMS) select committee launched a new Sub-Committee on Disinformation. Its task is to become ‘Parliament’s institutional home’ for matters concerning disinformation and data privacy; a focal point that will bring together those seeking to scrutinise and examine threats to democracy.’

The new sub-committee promises to offer an ongoing channel through which to gather evidence on disinformation and online political campaigning, and to highlight the urgent need for government, parliament, tech companies and others to take action so as to protect the integrity of our political system from online threats.

Damian Collins, chair of the DCMS committee, explained that the sub-committee was created because of:

‘concerns about the spread of disinformation and the pivotal role that social media plays. Disinformation is a growing issue for democracy and society, and robust public policy responses are needed to tackle it at source, as well as through the channels through which it is shared. We need to look principally at the responsibilities of big technology companies to act more effectively against the dissemination of disinformation, to provide more tools for their users to help them identify untrustworthy sources of information, and to provide greater transparency about who is promoting that content.’

The sub-committee follows up on the significant work conducted as part of the DCMS committee’s long-running inquiry into Disinformation and ‘Fake News’, whose final report was published in February 2019.

This inquiry ran for 18 months, held 23 oral evidence sessions, and took evidence from 73 witnesses: its final report contained a series of important conclusions and recommendations.

Among these, the report called on the government to look at how UK law should define ‘digital campaigning’ and ‘online political advertising’, and to acknowledge the role and influence of unpaid campaigns and Facebook groups both outside and during regulated campaign periods. It also advocated the creation of a code of practice around the political use of personal data, which would offer transparency about how people’s data are being collected and used, and about what messages users are being targeted with and by whom. It would also mean that political parties would have to take greater responsibility with regards to the use of personal data for political purposes, and ensure compliance with data protection and user consent legislation. (more…)