The Joint Committee on the Draft Online Safety Bill: steps in the right direction for democracy

Posted on January 27, 2022 by The Constitution Unit

The government’s draft Online Safety Bill does little to protect democracy from damage caused by online actors, despite a previous commitment to take action. Alex Walker argues that this was an error. Here, he analyses the December report of the parliamentary joint committee tasked with examining the bill. A post in early February will critique the conclusions and recommendations of the DCMS select committee, which published its report earlier this week.

In December, the joint committee tasked with scrutinising the government’s draft Online Safety Bill published its report, the conclusions of which were outlined by its Chair, Damian Collins, on this blog. The committee recommended significant overarching changes to the draft bill, which represents the first major attempt in the UK at online regulation.

Since its publication in May 2021, the draft bill has been subject to extensive criticism, including on this blog. In previous posts, I’ve highlighted that it fails to address online threats to democracy. The government’s 2019 Online Harms white paper acknowledged the seriousness of this issue and set out measures to tackle it. These proposals were then later abandoned.

Positively, the committee noted the government’s change of direction and concluded to the contrary that online harms to democracy should be tackled by legislation. Whilst the committee’s recommendations have their own limitations, if adopted they would better protect democratic processes from online harm than at present.

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The draft Online Safety Bill: abandoning democracy to disinformation

Posted on October 21, 2021 by The Constitution Unit

The draft Online Safety Bill published in May is the first significant attempt to safeguard the public from online harms through legislation. However, as Alex Walker explains, the government’s current proposals are a missed opportunity to address online harms to democracy and could even make tackling disinformation more difficult.

In May, the government published its draft Online Safety Bill, which is currently undergoing pre-legislative scrutiny by a committee of both Houses. It is also the subject of an inquiry by the Digital, Culture, Media and Sport (DCMS) Sub-committee on Online Harms and Disinformation. Published two years after the Online Harms white paper, the draft bill represents the first major attempt in this country to regulate the online environment and the major companies that dominate it. Given the significance of the bill, the parliamentary attention it is currently receiving is welcome. Nevertheless, as much of the evidence given to parliament points out, the draft bill has significant weaknesses. In September, Constitution Unit Deputy Director Alan Renwick and I submitted evidence to the DCMS Sub-committee inquiry. We highlighted the draft bill’s failure to address online harms to democracy. There is a danger that in its present form the bill will make it more difficult to tackle disinformation that damages and undermines democracy.

Abandoning the field: from the Online Harms white paper to the draft Online Safety Bill

As previously documented, in the course of the development of the online safety regime measures to strengthen democracy in the face of new challenges posed by digital technology have been dropped from the proposals. The Online Harms white paper, published in April 2019, was explicit that various types of online activity could harm democracy. It referenced concerted disinformation campaigns, deepfakes, and micro-targeting. The white paper set out a number of actions that it was expected would be in the regulator’s Code of Practice. They included: using fact-checking services, especially during election campaigns; limiting the visibility of disputed content; promoting authoritative news sources and diverse news content; and processes to tackle those who mispresent their identity to spread disinformation.

In many areas, the white paper’s position chimed with the findings of a major inquiry into disinformation conducted by the DCMS select committee over the previous eighteen months.

But the publication of the draft Online Safety Bill in May confirmed that the government has opted for a much more limited approach. Only disinformation that could have a significant adverse physical or psychological impact on an individual is now in scope. In choosing this approach, the government ignored the recommendations of the House of Lords Democracy and Digital Technologies Committee, which proposed that certain service providers should have a duty of care towards democracy.

The emphasis has shifted decisively away from acknowledging that online platforms have a responsibility for the impact their technology has on democracy, towards a completely unregulated approach to political content, regardless of the broader democratic consequences.

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Updating campaign regulation for the digital era

Posted on July 9, 2021 by The Constitution Unit

John Pullinger, chair of the Electoral Commission, argues digital campaign regulations need an ‘overhaul’ to make the electoral process more transparent and accessible to voters, thereby increasing confidence in the system in a manner that doesn’t discourage parties, candidates and campaigners to take in part in elections. He also calls on the UK’s parliaments to show that they do not tolerate the use of online activities that undermine democracy.

Digital channels are transforming our democracy. Action now can harness that transformation to make political campaigns better. Without the right action, our democracy may not be resilient in the face of the challenges posed by the digital era. But there is nothing unique to elections in this. It applies in the same way to how technological change is affecting so many aspects of our lives. And we can respond in the same way.

Voters can already be sceptical about what they see on social media and practise the art of asking. Who is telling me this? Can I be sure it is really from them? Why are they telling me this? Can I believe what they are saying? How can I check it out? Parties, candidates and campaigners can already use digital tools like imprints to show where information is coming from.

Other voices can already accentuate the positive and shame the bad. Social media platforms, news organisations, influencers and fact checkers increasingly see this as central to their own reputation. A platform is not neutral. It has values and shows its true colours by how it acts. By standing on the sidelines, they are getting the message that they will be seen to be complicit in undermining democracy. By standing tall they can see that they can provide a vital public service that will enhance their brand.

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Five ways to improve referendums after Brexit

Posted on June 24, 2021 by The Constitution Unit

Five years on from the 2016 Brexit referendum, Alan Renwick and Meg Russell argue that there are lessons to be learned from the past about how we can better organise and conduct referendums in the future, by ensuring better information for voters, enacting up to date elections regulation, seeking greater public input as part of a clearer process, with the endgame and how to get there agreed as far in advance as possible.

23 June marked five years since the Brexit referendum. The subsequent Brexit process was drawn out and fractious, marked by deep division in the country, and heated arguments about the proper roles of parliament, the courts, the devolved administrations, and the public in the UK’s democratic system. Now, amidst the COVID-19 pandemic, politics remains far from ‘normal’.

Five years on from June 2016, we should reflect on what lessons can be learnt for using referendums differently and better in the future – not least because further referendums may be on the cards. This applies most obviously in Scotland, over possible independence, but also potentially in Northern Ireland, where the Constitution Unit has recently led a project on the conduct of any future referendum on Irish unification. Both of these issues have risen in prominence partly due to divisions over Brexit.

Drawing on our recent Northern Ireland work, as well as the important report of the Independent Commission on Referendums, which sat during 2017–18, we identify five key lessons.

1. Before embarking on a referendum, the effects of both possible outcomes should be clear

Referendums by their nature require a simple choice between (usually two) options. To enable informed choices by voters, and also to avoid arguments afterwards, the meaning of those options should be as clear as possible. In the case of Brexit, the Leave option was far from fully specified, leading to long and difficult post-referendum wrangles about how to interpret the result. Civil servants were famously forbidden by the Prime Minister, David Cameron, from preparing for a Leave outcome: as the chief official at Defra (one of the departments most affected by Brexit) has explained: ‘It was only on the day of the referendum that any kind of discussions had started about what might happen if the answer was a no’. This approach should never be countenanced again. As far as possible, the full implications of change must be put before the voters. Ideally (as occurred in the referendum on the voting system in 2011), the proposed change should already have been legislated for in detail, with the referendum leading directly to its implementation or repeal.

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Constitutional reformers need to tackle six key questions about the regulation of digital campaigning

Posted on June 18, 2021 by The Constitution Unit

Today marks the second day of the Unit’s conference on the Johnson government’s constitutional reform agenda, for which free tickets remain available. One of today’s speakers, Kate Dommett, argues that the government’s proposals to tackle the challenges posed by digital campaigning are far from comprehensive, leaving many unanswered questions for future governments to address.

Five years on from the Brexit referendum and the Cambridge Analytica scandal that emerged in its wake, the government is poised to publish its Electoral Integrity Bill. Proposing ‘significant changes to the electoral and democratic system’, it could be presumed that Boris Johnson’s government is about to enact an ambitious programme of constitutional change that will update electoral systems to the digital age. Yet, from the details available so far – including a new announcement this week – it seems Johnson’s government is failing to address six critical questions about digital campaigning, leaving considerable room for further reform.

The rise of digital technology in campaigning

The rise of digital campaigning has been a slow and steady phenomenon in UK elections, but in recent years there has been significant attention paid to the need for electoral reform. The current regulation governing electoral campaigning can be found in the Political Parties, Elections and Referendum Act (PPERA) that was passed in 2000. Since then the adoption of websites, social media profiles and, more recently, online advertising by electoral campaigners has raised questions about the suitability of existing legislation. Indeed, a range of parliamentary committees, civil society bodies, academics and even digital companies such as Facebook, have asserted a need for urgent digital campaigning regulation.

Publishing a report devoted to digital campaigning in 2018, the Electoral Commission has been at the forefront of these debates. Its analysis revealed the rapid rise of digital tools in elections, showing increasing amounts are being spent on digital advertising. Updating its statistics to include the last election, Figure 1 (below) shows that spending on digital advertising has increased to around £7.5 million, and now represents a significant proportion of election campaign spend.