Online Safety Act Implementation: Parliament Steps Up Its Scrutiny

Parliamentary scrutiny of the implementation of the Online Safety Act (OSA) has stepped up a gear in the recent weeks; in this article, Maeve Walsh reviews the recent debates.

Maeve Walsh

Director, Online Safety Act Network

During its long, tortuous passage through Parliament, the Online Safety Act 2023 was one of the most heavily scrutinised and amended pieces of legislation in recent years. But if the Government and Ofcom, the regulator charged with implementing it, thought that Parliamentary interest in its progress was going to stop with Royal Assent, the events of the past few weeks are something of a wake-up call.

Small But Risky Platforms

On the 24th February, the House of Lords voted for a “Regret Motion”, tabled by the Liberal Democrats’ Lord Clement-Jones, to express its dissatisfaction with the regulations the Government had tabled on the categorisation of services under the OSA.  At issue was the fact that a late amendment to the Bill – as a result of cross-party pressure in the Lords back in 2023 – to bring small, high-harm services into category one (and thus subject to the strictest duties) was not reflected in Ofcom’s advice to the Government, nor in the subsequent regulations.

The noble Lords were rightly angry that Parliament’s intent had been ignored – as were MPs in the Commons, when the regulations were debated there earlier in the month: there’s more detail on the background in this OSA Network briefing note.

“Timid” Implementation

On the 26th February, it was the turn of MPs to voice their discontent at the way the OSA’s implementation was progressing. Sir Jeremy Wright MP – a former DCMS Secretary of State, who played a significant role in the early stages of legislation and who was also an angry participant in the Commons’ categorisation debate – led a well-attended Westminster Hall debate on the topic.

His assessment in his opening and closing statements was pretty brutal. “Ofcom has taken an unnecessarily restrictive view of the harms it is asking services to assess and act on and, indeed, a view that is inconsistent with the terms of the Act”; “Timidity and lack of ambition on the part of Ministers or regulators … is not just a challenge to parliamentary sovereignty but, much more importantly, a dereliction of duty to the vulnerable members of our society, whose online safety is our collective responsibility.” 

In closing, reflecting on the fact that the Government Minister – Feryal Clark MP – had explained  that Ofcom’s concern in drafting its codes of practice was that they were “as proofed against judicial review as possible”, Wright said: “We cannot be so terrified of that prospect [of JR] that we are unwilling to extend the parameters of the regulation as far as we believe they should go. That is why I think everybody needs to be a tad braver in all this.”

Civil Society Concerns

Wright set out a number of shortcomings in Ofcom’s approach during the debate: for example, on the limitations of the regulator’s approach to risk assessments and the codes of practice; on the absence of a focus on how the design and functionalities of services contribute to the risk of harm to children online; and on its approach to proportionality. His concerns were echoed – and supplemented with more – by MPs from all sides of the House.

The Online Safety Act Network works with over 70 organisations – from the largest national children’s charities to grassroots campaign groups – who strongly agree with Wright’s assessment. These are organisations watching the evidence of harm mount up while waiting for the OSA to come into force fully.  Yet the response and sense of urgency from the regulator to the evidence presented to it has been found wanting: we set out why here.

The renewed and determined engagement of Parliamentarians in holding the Government and regulator to account is therefore very welcome.

Final Thought

Parliamentary scrutiny of Ofcom’s approach to implementation was always going to increase as that building blocks were put in place: the illegal harms codes of practice were laid in Parliament in December, and will be in force later this month; Ofcom has this week confirmed that its enforcement programme relating to the illegal harms risk assessments is now underway; and the children’s codes of practice are due to be laid next month. You can read more about the key implementation milestones in our explainer here.

The Government may not wish for it after the bruising encounters of the last few weeks, but what’s needed is more – rather than less – Parliamentary scrutiny: whether it’s providing a mechanism for statutory instruments and codes to be reviewed by relevant Select Committees before they are laid, as the previous Government had promised during the OSA’s passage; or, as Wright and many others have argued for, a dedicated Joint Committee on Digital Regulation to provide scrutiny across the whole legislative landscape in a way that Departmental Select Committees do not have the capacity to deliver.

You can read more analysis and access a wealth of OSA-related resources on the Online Safety Act Network website and sign up to their fortnightly newsletter here.

For more of Chamber UK’s analysis on online safety policy and legislation, please click here.