While some categories of criminal offence are identified in the draft Bill as is the threshold for harm to children and adults, the draft allows for the addition to and subsequent amendment of these categories. We note the evidence given to the Lords Digital and Communications Committee by the Digital Minister Caroline Dinenage that a deliberate decision was made not to add harms to the face of the Bill due to the speed at which the landscape evolves and to leave flexibility for new (content that is deemed to cause) harms to be added[1]. However understandable this is, it gives rise to a number of questions around the scope of these provisions and the process.

One issue as to scope concerns whether the Secretary of State can choose to include priority content which does not satisfy the test of the victim being an individual in cl 41(4)(d). While clause 44(1) specifies that the Secretary of State is to take into account of level of risk of harm being caused to individuals, the Secretary of State is not bound by this. Clause 44(5) does preclude the Secretary of State from trying to introduce offences excluded from the regime by clause 41(6). Possibly, the Secretary of State could also specify harms that did not otherwise meet the harm threshold. These possibilities raise the question of what sorts of things are envisaged in that, if the Secretary of State chooses to go down that route. Is this, for instance, where the Government intends to include racism and misogyny of the sort directed at footballers and other prominent figures? Or other forms of distressing abuse that fall short of a criminal offence?

The regulation-making process under clauses 44-46 gives Parliament some involvement in the harms to be emphasised in the regime. Nonetheless, this intervention is limited.  Parliament needs to consider how it could exercise its views in an SI-making process where the Secretary of State has the initiative. One option is for the “Grimstone Rule” apply here, as described in relation to Trade Bill negotiations:

“This Parliament will now need, in the way that it works, to address four major points in any future statutory system, although they will be covered by the Grimstone rule: approval of the initial objectives, review of the progress of negotiations, considerations of the final proposed agreement including changes to existing statutory provisions, and parliamentary approval of the deal and any subsequent changes to legislation that may be required.”[2]

Another option might be a joint committee to examine proposed SIs.

We would welcome a process whereby the Secretary of State’s intention with regard to priority harms is published during the pre-legislative scrutiny. It may indeed be possible to move to a process where at least some of the priority harms are included in the Bill. Where OFCOM’s research is required, the government should consider whether some ‘foundation’ research could be done in the six months or more before the Bill is introduced so as to allow for more to be put on the face of the Bill. We note that OFCOM is taking small steps in this direction with research on disinformation published recently and explicitly flagged as preparation[3]. But a lot more will be required and OFCOM should have the confidence of the government’s support.

We envisage that hate crime will come under the category of “priority illegal content” but, while draft codes of practice on CSEA and terrorism have already been published alongside the full government response, there is no such code in development on hate crime. This could potentially lead to delays in enforceable action by the companies in this area. Hate speech which falls short of the criminal threshold could be designated as priority harmful content (both in respect of adults and children). We have been working with civil organisations – prior to the publication of the draft Bill – to look at what a model draft Code of Practice for Hate Crime might include and we have published this alongside our response for feedback and refinement[4]. We do not expect that it will be picked up “as is” by OFCOM, not least as it does not align perfectly with the draft Bill, but we hope that it will provide additional substance to work with and expedite the development of the thinking in this area as the draft Bill goes through PLS.

[1] Caroline Dinenage evidence to Lords Digital and Communications Committee 11th May 2021 https://committees.parliament.uk/oralevidence/2187/pdf/

[2] Lord Stevenson of Balmacara, Debate on the Trade Bill, 23 February 2021, Hansard (HL) vol 810, col  728, available: https://hansard.parliament.uk/lords/2021-02-23/debates/8F92FB28-D51A-4996-8471-7CCAB472F224/TradeBill and Lord Grimstone https://hansard.parliament.uk/Lords/2021-02-23/debates/8F92FB28-D51A-4996-8471-7CCAB472F224/TradeBill Trade Bill Volume 810: debated on Tuesday 23 February 2021 Col 723

[3] https://www.ofcom.org.uk/research-and-data/internet-and-on-demand-research/online-nation

[4] https://www.carnegieuktrust.org.uk/publications/draft-code-of-practice-in-respect-of-hate-crime-and-wider-legal-harms-covering-paper-june-2021/