NSPCC’s latest guidance for tackling the ‘Wild West Web’ and delivering The Online Harms Bill

Keoghs have previously discussed the government's plan to implement an Online Harms Bill as part of a continued promise to the NSPCC to keep children safe from sexual abuse online. 

Whilst the Bill in still in the process of being drafted, the level of abuse online is growing at a rapid rate. In order to urge the government into action The NSPCC have provided a report ‘How the Wild Web should be won’.

Background

The latest Home Office data found that between January and March 2020 the number of online sex crimes against children recorded by the police reached the equivalent of 101 a day in England and Wales[1]. This was in comparison to 22 similar crimes which were recorded in June 2019.  

The report sets out how the upcoming Online Harms Bill must set the global standard in protecting children. The government has signalled a determination to legislate for regulation that successfully fights child abuse. However, the NSPCC are concerned this will not be translated into law and the opportunity to regulate online abuse will be lost.

To encourage ministers to improve online safety, the NSPCC’s report suggests six tests that would provide robust regulations required to make the Bill effective.

The six tests and NSPCC campaign

The NSPCC’s report reaffirms the case for action and its ambition for the Online Harms Bill to make Britain the safest place online[2]. They say ”If the regulation is poorly designed or the regulator is not given the power it needs then children will continue to face otherwise preventable harm”[3]

The six tests put forward by the NSPCC are:

1. Creating an expansive, principles-based duty of care. Tech firms should have a legal responsibility to identify harms caused by their sites and deal with them.
2. Tackling online sexual abuse. Platforms must proactively and consistently tackle grooming and abuse images.
3. Tackling legal but harmful content. The law must enforce firms to respond to the harms caused by algorithms targeting damaging suicide and self-harm posts at children.
4. The regulator must have robust transparency and investigatory power and demand information from companies.
5. Hold industry to account with both criminal and financial sanctions.
6. Give civil society a legal voice for children with user advocacy arrangements.

Peter Wanless, NSPCC Chief Executive, said:

“Industry inaction is fuelling this staggering number of sex crimes against children and the fallout from coronavirus has heightened the risks of abuse now and in the future”.

If followed, the tests will ensure statutory regulation is the appropriate response to online abuse as opposed to self-regulation by tech companies.

Keoghs Views

The Online Harms Bill is required to address the rising figures and ensure children’s safety online. The six tests put forward by the NSPCC put the emphasis on tech companies to be accountable for the online content and to ensure the safety of children.

It is, however, unclear if the government will follow the tests put forward by the NSPCC and what the ramifications will be of any Bill on tech companies and their insurers in ensuring they identify/ mitigate any foreseeable harm.

If the tests are to be followed and statutory regulation is deemed necessary and proportionate, an expansive duty of care will be enforced. If this is the case online platforms will need to identify reasonably foreseeable risks caused by the design or operation of their sites.

In the event harm occurs a platform will breach its duty of care if it fails to demonstrate a rigorous process to identify and mitigate reasonable foreseeable harm, or if children have been put at material risk as a result of systemic failures that could reasonably have been demonstrated.

Such an expansive duty of care will inevitably have onerous implications for companies and insurers. Procedures will need to be introduced to ensure foreseeable harm is recognised as well as systemic failures. This will be required to ensure their duty is not breached, children are kept safe and a civil liability is prevented.

With the Bill outstanding it will be interesting to see if the government heed the NSPCC’s guidance and what response will be required by the tech companies.

For more information, please conact Nicola Markie, Solicitor. 

[1] NSPCC estimates are based on the latest police recorded crime figures available (1 January 2020 – 31 March 2020) for England and Wales for Obscene Publication offences and Sexual Grooming offences.

[2] Department for Digital, Culture, Media and Sport 920170 Internet safety Green Paper. London DCMS

[3] How to win the Wild West Web, six tests for delivering the Online Harms Bill September 2020, Introduction, September 2020.