The publication, by Ofcom, of its illegal harms codes may have garnered all the media attention yesterday (16 December) but - as per the Written Ministerial Statement from the Secretary of State for Science, Innovation and Technology - DSIT has also published its response to Ofcom’s advice on categorisation of servicesand has laid the regulations along with an explanatory memorandum and an impact assessment.

The Secretary of State’s decision to accept the advice, which excludes small but risky platforms from category one and therefore exempts them from the strongest possible duties under the Act, goes against strong exhortations from a variety of campaigners - including mental health and suicide prevention charities, as well as campaigners against racist and misogynistic hate and abuse.

Baroness Morgan, the Peer who brigaded strong cross-party support to force the previous Government to amend the Bill to allow for the inclusion of small platforms in category 1, voiced her disappointment about this in the House of Lords on Friday, when news of the decision had reached her. She called the decision a “direct contravention of the amendment passed in this House:

“if the Government seriously wants to tackle violence against women and girls, they need to be consistent across all legislation and treat the platforms carrying this content as seriously as they should be treated, so that, hopefully and eventually, the content will be something that people cannot see and cannot trade.”

It’s fair to say that - despite the rationale put forward by the Secretary of State in his WMS, including the need for speed and the fact that he feels Ofcom’s existing powers under the OSA’s illegal content and child protection duties will catch many of the most harmful sites - this issue isn’t going to go away. Earlier last week, another veteran of the Online Safety Bill’s Parliamentary passage, Lord Clement-Jones, used a probing amendment on the Data (Use and Access) Bill to remind the Government on the debatesthe Lords had had on the issue and to press the Government on its intentions. When he withdrew his amendment, he said:

“There is considerable concern that the current category 1 is overconservative and that we are not covering the smaller, unsafe social media platforms. When we discussed the Online Safety Bill, both in the Joint Committee and in the debates on subsequent stages of the Bill, it was clear that this was about risk, not just size, and we wanted to cover those risky, smaller platforms as well. While I appreciate the Government’s strategic statement, which made it pretty clear, and without wishing to overly terrorise Ofcom, we should make our view on categorisation pretty clear, and the Government should do likewise.”

The draft regulations are subject to the affirmative procedure: they cannot be amended but they must be approved by both Houses; the Joint Committee on Statutory Instruments will consider them during this 40-day period, then they will go forward for debate in both the Lords and the Commons. Once approved, there is a 21-day period before they come into force, after which Ofcom can then publish its register of categorised services.

You can read more about the debates that led to the Government’s concession and why Ofcom’s advice on this matters in our blog post from earlier this year.