DRAFT Code of Practice in respect of Hate Crime and wider legal harms

June 15, 2021

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by Professor Lorna Woods, Professor of Internet Law, University of Essex, William Perrin, Trustee, Carnegie UK Trust and Maeve Walsh, Carnegie Associate

DRAFT Code of Practice in respect of Hate Crime and wider legal harms [1]

Introduction

There are numerous codes of practice in place for social media companies. They are almost all voluntary in nature, limited in scope and have little to no impact in practice. Often, companies argue that their own activities go far beyond stated codes of practice which quickly become unfit for purpose.

This situation is about to change. The UK Government has recently published its draft Online Safety Bill, which will begin the process of pre-legislative scrutiny in the coming weeks.[2]

The draft Bill is a framework Bill, setting out the broad design of a systemic, risk-managed regulatory regime in primary legislation with provisions for a wide array of secondary legislation, codes of practice and guidelines to follow – much of it to be informed by prior research, stakeholder engagement and consultation led by OFCOM, the appointed regulator – which will bring the regime into effect.

As we set out in our analysis of the draft Bill, which we publish alongside this draft Code, the timescales for this are likely to be long. It is not as yet clear how much of the prior steps can be undertaken concurrently, or whether the Secretary of State for Digital, Culture, Media and Sport will be minded to expedite the process and instruct OFCOM to get on with much of preparatory work before the full Bill completes its passage through Parliament. What we do know, however, is that one of OFCOM’s core roles when it assumes its full powers will be to assess adherence to the codes and judge failures to apply the duties in the Bill accordingly. There are many Codes of Practice already designated in the draft Bill, and two large interim Codes on terrorist content and child sexual exploitation and abuse material were published alongside the Government’s full response in December.[3] But a large swathe of similarly illegal online activity – hate crime – is not mentioned in the draft Bill, nor does it appear that a Code of Practice is forthcoming, at least until after OFCOM has provided its advice to the Secretary of State on the identification of priority harms to be included in secondary legislation.

We feel this is an oversight. The passage of the draft Bill through pre-legislative scrutiny as well as the subsequent Parliamentary debate of the full Bill will be greatly facilitated by material which demonstrates how the regime will work in practice. With that in mind, we have developed – with the input of an array of civil society organisations with an interest in this area – a model Code of Practice for Hate Crime and wider legal harms. It draws on, and should be read in conjunction with, the Codes and other references in the annex, including the European Code of Conduct on Illegal Hate Speech Online and the Digital Economy Act Code of Practice. It offers systems-level solutions to addressing harms and could form the basis of a regulatory Code in this area. It is aimed at outlining principles rather than an exhaustive set of rules and service operators should aim to engage with the spirit of those principles and not look just to the letter of the code.

This draft Code does not at this stage synchronise with draft Online Safety Bill, which itself will be subject to modification and revision as it passes through the Parliamentary scrutiny process. Instead, the Code contains many clauses that set out our own approach to a truly systemic, risk-managed regulatory regime, built on an overarching statutory duty of care (rather than multiple duties, as is the Government’s intent). As such, it is a commentary on the more limited approach the Government has adopted, which we discuss further in our full response. We are publishing it now to start the debate and to improve its design.

You can find the draft code and a commentary note on its development here. We would welcome feedback on the draft by 30th June 2021 and will take this into account as we work to revise the draft to dock fully with the draft government Bill.

Please submit feedback by 30th June to: [email protected]

 

[1] This draft code of practice has been developed with the input of the following organisations: Antisemitism Policy Trust, The Bishop of Oxford’s Office, Glitch, Centenary Action Group, Faith Matters, Galop, Hope Not Hate, Institute for Strategic Dialogue, The Alan Turing Institute. It was later discussed at a workshop including those organisations, along with other civil society representatives and attendees from regulators the major tech platforms in February 2021. The draft Code’s covering paper sets out some of the feedback from those discussions.

[2] https://www.gov.uk/government/publications/draft-online-safety-bill

[3] https://www.gov.uk/government/publications/online-harms-interim-codes-of-practice