Mon 03 Apr 2023

The New Online Safety Bill and Encryption

The New Online Safety Bill and Encryption

The Online Safety Bill continues to progress through the Parliament, and is currently in the Committee Stage at the House of Commons. The Bill is causing increasing debate with privacy rights activists, most particularly in relation to the requirement for “illegal content risk assessment”, as the Bill explains it.

Simply put, those who provide platforms for individuals to communicate on, such as Facebook Messenger, WhatsApp, Instagram and so forth, will be required to “scan messages” to review any content that may be illicit or illegal. For instance, the content that should strike alarm with the service provider includes, but is not limited to:

  • content that is harmful to children
  • content that relates to terrorism or terrorism activities
  • illegal content amounting to an offence
  • child exploitation and abusive content

In complying with the new duties burdened on service providers following from this Bill, OFCOM will prepare and issue a code of practice to aid those organisations. The requirement for service providers to do an “illegal content risk assessment” introduced by the new Bill causes concerns as it jeopardises and arguably ends end-to-end encryption.  

Clearly, given the stringent and onerous obligations on service providers that follow from the enactment of this Bill, service providers such as WhatsApp have threatened to withdraw their service from the UK. It is not unimaginable that such service providers will be reluctant to support this Bill and will welcome it with open arms.

Moreover, if Western societies are prepared to curb the encryption rule here in this context, whilst the aims of the legislation are beneficial in protecting individuals from different harms, it sends a negative message to more repressive regimes that encryption rules can be broken in a less beneficial context.

As the Bill progresses through the different stages of the Parliament, it will be interesting to see whether the encryption point will be a contentious matter and whether it will be debated or scrutinised at Parliamentary level.  

This article was co-written by Arina Yazdi, Trainee Solicitor. 

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