We are publishing this statement with the support of the organisations and individuals listed below.

Last February, the OSA Network published a statement in response to Ofcom’s consultation on its illegal harms proposal. It was signed by 23 organisations and experts representing the breadth of interests across our membership and was the culmination of many months of discussion with Ofcom on the issues. The headlines we raised in the statement were explored in more detail in the OSA Network’s full response and reflected in the public letter, and supporting evidence, from groups campaigning against Violence Against Women and Girls.

Many of the same concerns were repeated in our and others’ responses to Ofcom’s children’s codes consultation because both sets of codes were built on the same foundation: a cautious interpretation of the legislation that, we believe, will fundamentally affect the effective implementation of the regime which has - at its heart - the protection of users from harm. In the subsequent 7-10 months since both consultations closed, we - along with many other civil society organisations representing a broad swathe of victims’ interests - made many representations to Ofcom and spent many more hours in meetings with them to expand on the issues. These meetings were also used to set out the evidence (from both academic research and lived experience) of the reality of the harm to victims that was likely to either arise as a result of the gaps in Ofcom’s proposals or to be only partially mitigated by the weak nature of them.

The scale of the civil society evidence presented to Ofcom - and the related investment of time and resource in providing it - can be judged by a quick flick through Ofcom’s Illegal Harms Statement’s “Approach” document where footnotes referencing the submissions often take up more than half the pages of text. Much more was submitted to the regulator - at Ofcom’s request - outside the consultation process. Very little feedback on whether that evidence had helped was received in return: civil society stakeholders had to wait for the publication of the codes to find out if their representations had been taken on board.

The answer to that when it came just before Christmas was a resounding no - with a few, very limited exceptions. Suggestions from civil society on how to strengthen the codes to protect users better have had no impact. Responses from industry have, conversely, led to many changes - to weaken them. None of these changes in industry’s favour were run past civil society or victims groups, and no further consultation on them is proposed.

We set out one particularly worrying example of this in the annex to the full version of this statement (available as a PDF version below) - where feedback from “a small number” of industry stakeholders led to a material change to a key measure in the codes (the requirement to swiftly take down illegal content, which now only has to be done if “technically feasible”). Victims groups only became aware of this important and significant change when the illegal harms statement was published.

In short, the investment of time and resources by civil society groups, and the supply of evidence to Ofcom to support their concerns, over the past 12 months has made little impact - except to take up space in the footnotes. Instead, we are now required to complete further responses and submit yet more evidence to a further illegal harms consultation in April on (some, but by no means all of) the issues we raised in the first round. Any subsequent changes to the next iteration of these codes won’t come into force for a further 18 months’ time. The time this is taking is unacceptable, leaves victims and vulnerable users open to significant harm, and undermines the repeated assurances from Ofcom that it understands the material impact of the concerns that have been expressed to them.

We set out in the annex to this statement (available below) Ofcom’s responses to the main points we made in our original statement on the illegal harms consultation. Our recommendations to Ofcom fell into two broad categories:

1. Those that stem from our assessment that Ofcom could have interpreted the Act in a less cautious way in order to ensure that the obligations placed on regulated services - and, consequently the protections afforded to users - were as stretching and effective as possible.
2. Those that highlighted where Ofcom’s choices about what regulated services were required to do in order to comply with their duties - eg in Ofcom’s risk assessment guidance, or in the content of the draft codes - were limited, narrow and weak, even within Ofcom’s preferred interpretation of the legislation.

We are still of the view that Ofcom’s interpretation of the Act has been unnecessarily restrictive and we continue to urge them to reconsider whose interests this primarily serves. But we are disappointed that there has been so little engagement, throughout the whole process, with the substance of our concerns: as we highlight in the annex, Ofcom’s responses in the statement are brief with no alternative offered to address the substantive issues (eg the risk of harm being left unmitigated at scale, the gaps between the risk assessment duties and the measures companies must take to address their risks, the skewed approach to proportionality that prioritises an economic view over user safety, or the loopholes which companies might exploit as technologies develop and change). Ofcom’s response therefore frequently falls back onto its interpretation of the Act as justification for inaction.

The purpose of the OSA is for regulated services to assess and mitigate the risk of foreseeable harm to users of online services. Organisations in our Network fought hard, and engaged in detailed policy development and engagement work, over many years to ensure that the legislation delivered this.

As we said in our original statement, interpretations of the Act involve some degree of judgement and choice. Ofcom has chosen an interpretation of the Act that does not use all the flexibility it provides, resulting in a first set of codes that set a weak foundation for user safety as the OSA regime takes effect. We urge Ofcom in the strongest possible terms to reconsider this choice and avoid repeating the same mistake with the forthcoming children’s codes.

Signed by:

Alliance to Counter Crime Online

Antisemitism Policy Trust

Barnardo’s

Center for Countering Digital Hate

CEASE (Centre to End All Sexual Exploitation)

Christian Action Research and Education (CARE)

Clean Up the Internet

End Violence Against Women Coalition

5Rights Foundation

Glitch

Global Action Plan

Institute for Strategic Dialogue (ISD)

Internet Matters

Kick It Out

Marie Collins Foundation

Molly Rose Foundation

Reset

Samaritans

Suzy Lamplugh Trust

Thomas William Parfett Foundation

Prof Clare McGlynn, Durham University

Prof Lorna Woods, Essex University

William Perrin, OSA Network Advisory Council