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Online Safety Bill: What does ‘legal but harmful’ mean and why was it controversial?

The Online Safety Bill has been amended before it returns to Parliament (PA Wire)
The Online Safety Bill has been amended before it returns to Parliament (PA Wire)

Prime Minister Rishi Sunak will toughen up punishments for social media bosses who fail to protect children from harm online after bowing to pressure from rebel Tory MPs.

Fifty MPs backed a change in the bill that would make social media bosses criminally liable for preventing minors from seeing harmful content on their platforms.

Culture Secretary Michelle Donelan made a deal with the MPs but said that the wording “wasn’t quite right,” according to a source close to her.

But what is the Online Safety Bill and what other changes have been made?

Which measures were scrapped in the Online Safety Bill?

In November, controversial measures that would have forced big technology platforms to take down “legal but harmful” material were scrapped from the Online Safety Bill.

Critics claimed these posed a risk to free speech and gave big tech companies too much power.

Ministers axed the provision on regulating “legal but harmful” material accessed by adults. They are instead requiring platforms to enforce their terms and conditions for users.

If those terms explicitly prohibit content that falls below the threshold of criminality — such as some forms of abuse — Ofcom will then have the power to ensure they police them adequately. Ofcom, which is the Office of Communications, is the Government-approved regulatory and competition authority for the broadcasting, telecommunications and postal industries of the UK.

The bill — which aims to regulate the internet — is intended to become law in the UK before next summer.

Culture Secretary Ms Donelan denied weakening laws protecting social media users and said adults would have more control over what they saw online.

She told the BBC the bill was not being watered down, and that tech companies had the expertise to protect people online.

“These are massive, massive corporations that have the money, the know-how and the tech to be able to adhere to this,” she said.

Ms Donelan warned that those who did not comply would face significant fines and “huge reputational damage”.

But some people criticised the changes, including Labour and the Samaritans, who called it a hugely backward step.

What does ‘legal but harmful’ mean?

The bill previously included a section that required “the largest, highest-risk platforms” to tackle some “legal but harmful” material accessed by adults. This referred to offensive content that does not constitute a criminal offence.

It meant that the likes of Facebook, Instagram and YouTube would have to prevent people from being exposed to content such as self-harm, eating disorders and misogynistic posts.

Why is the Online Safety Bill controversial?

The bill has been controversial since its introduction to Parliament in May 2021. It has criticism from two main camps: online safety campaigners and free speech advocates.

Despite the planned changes referring to material accessed by adults, the former argue the legislation does not go far enough to protect people from harmful content online.

The boss of the Samaritans, Julie Bentley, said “the damaging impact that this type of content has doesn’t end on your 18th birthday”.

“Increasing the controls that people have is no replacement for holding sites to account through the law and this feels very much like the Government snatching defeat from the jaws of victory,” she said.

But free speech campaigners have argued the bill opened the door for technology companies to censor legal speech.

The “legal but harmful” provision was especially seen as restrictive and critics feared too much content would be removed. They have argued that social media sites would have been pressured into taking down material that people had a right to see.

It was “legislating for hurt feelings”, former Conservative leadership candidate Kemi Badenoch said.

In July, nine senior Conservatives, including former ministers Lord Frost, David Davis and Steve Baker, who has since returned to Government, wrote a letter to then Culture Secretary Nadine Dorries. They said the provision could be used to clamp down on free speech by a future Labour government.

Following the outcry, Ms Donelan has ditched the “legal but harmful” restrictions. These would have imposed potential multi-million-pound fines on sites if they failed to prevent adults and children from seeing material that fell under this category.

“It had (a) very, very concerning impact, potentially, on free speech,” Ms Donelan told Sky News, defending the decision. “There were unintended consequences associated with it. It was really the anchor that was preventing this bill from getting off the ground.

“It was a creation of a quasi-legal category between illegal and legal. That’s not what a government should be doing. It’s confusing. It would create a different kind of set of rules online to offline in the legal sphere.”