Technology companies could be forced to remove videos of people crossing the English Channel “which show that activity in a positive light”, while executives could face criminal sanctions for failing to protect children online, under proposed UK government amendments to the Online Safety Bill.
Announced in a statement by digital minister Michelle Donelan on 17 January, the first amendment seeks to expand the Bill’s list of “priority offences” – those which represent the most serious and prevalent illegal content or activity online, and which tech firms will be obliged to proactively prevent people from being exposed to – by incorporating existing immigration offences.
“The use of highly dangerous methods to enter this country, including unseaworthy or small and overcrowded boats and refrigerated lorries presents a huge challenge for us all,” said Donelan. “The situation needs to be resolved, and we will not hesitate to take action, wherever that can have the most effect – including through this bill, as Organised Crime Groups are increasingly using social media to facilitate migrant crossings.”
She added that while the bill already contains criminal liability provisions for senior managers for failure to comply with information notices from online harms watchdog Ofcom, the second amendment will introduce criminal liability for bosses who fail to comply with a notice to “end contravention [of the law]”, which is designed to deal with instances where senior managers have “consented or connived” to ignore the bill’s enforceable requirements around protecting children.
“While this amendment will not affect those who have acted in good faith to comply in a proportionate way, it gives the act additional teeth to deliver change and ensure that people are held to account if they fail to properly protect children,” she said.
Magdalena Zima, an associate in law firm Kingsley Napley’s criminal litigation team, said this amendment will make the legislation more effective in forcing compliance: “Even though the Bill is likely to face a long journey through the House of Lords, companies should start thinking about having a robust legal backup, not only to ensure they act lawfully when the bill is enacted, but also that they do not put their employees at risk of prosecution.”
Founder of Tech London Advocates and Global Tech Advocates, Russ Shaw, however, said the criminal liability amendment was a distraction: “How directors would be held criminally liable is unclear and raises a number of legal issues that would further convolute the process. The addition of ‘director liability’ is an extreme proposal and would not solve the current problems.”
He added that while social media firms to “need to step up an invest in solving the issue…Ultimately, penalties must be impactful to change behaviour but must not be made personal. It’s important the government now gets to grips with what is a highly sensitive, contentious and significant piece of tech legislation.”
New priority offences around immigration
The immigration offences being incorporated via the government’s amendment include section 2 of the Modern Slavery Act, making it a priority offence to arrange or facilitate the travel of another person online, and section 24 of the Immigration Act, which deals with illegal entry to the UK.
“Although the offences in Section 24 cannot be carried out online, paragraph 23 of the Schedule [7 in the Online Safety Bill] states that priority illegal content includes the inchoate offences relating to the offences that are listed,” said Donelan.
“Therefore aiding, abetting, counselling, conspiring etc those offences by posting videos of people crossing the channel which show that activity in a positive light could be an offence that is committed online and therefore falls within what is priority illegal content.”
In proactively dealing with priority offences, firms must design features, functionalities and algorithms that prevent users from encountering them in the first place, and work to minimise the length of time the content is available on their services.
Donelan added “the result of this amendment would therefore be that platforms would have to proactively remove that content” related to English Channel crossings.
James Baker, campaign and advocacy manager at Open Rights Group (ORG), said: “The government wants to stop people seeing videos that might inspire them to make crossing attempts. However, people thinking of making a crossing will be outside of the UK, viewing videos from outside the UK’s jurisdiction.
“Will this now mean RNLI videos of lifeboats rescuing people face censorship? Is the government just trying to hide the problem from us and our social media feeds?”
Monica Horten, policy manager for freedom of expression at ORG, added that there is also a fundamental question about how platform providers go about detecting and identifying this content in a social media post.
“They could block people smugglers’ accounts, but more likely in the current political climate, they will look for posts containing images of what the government does not want to see – people arriving at UK beaches in small boats – and remove them,” she said.
“The chances are they would rely on artificial intelligence techniques, or content moderation systems based on perceptual hashing. Both options entail risks of over-blocking. Lawful posts could be censored, with serious implications for public discourse in the UK.”
Horten added that section 25 of the Immigration Act, which relates to offences for assisting illegal immigration, has already been included in Schedule 7 since at least September 2022, which raised questions at the time about whether content related to Channel crossings would have to be removed by tech companies.
A previous amendment to the bill tabled by Dover MP Natalie Elphicke in December 2022 is also referenced by Donelan in her statement, which sought to tackle illegal immigration through the Online Safety Bill by adding a clause that, according to the Notices of Amendment published online, “would create a new criminal offence of intentionally sharing a photograph or film that facilitates or promotes modern slavery or illegal immigration”.
Given these previous developments, Horten said while ORG previously suspected the government was angling to use the bill to clamp down on crossings, Donelan’s statement “confirmed our fears” about what they meant in practice.
ORG and other civil society groups previously called for a complete overhaul of the Online Safety Bill in September 2022, on the basis that its measures threaten privacy and freedom of speech.
In March 2022, the UK government came under fire from lawyers, human rights groups and migrant support organisations for spending tens of millions of pounds on border surveillance technologies to deter and help punish migrants crossing the English Channel, rather than using those same resources to provide safe, legal routes into the country.