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Against the backdrop of the Online Safety Bill (the Bill) reaching the final stages in the House of Lords before becoming legislation, and the high profile inquest into the death of Molly Russell (the Inquest), as part of the UK Government’s aim of better regulating online content, the latest amendment of the Bill will allow coroners and bereaved families to have access to information held by tech companies.
The effects of the latest amendment
The Bill’s final day of scrutiny by a committee in the House of Lords took place on 22 June 2023. The line by line examination resulted in further amendments, one of which creates an express power for Ofcom to require information from services about a deceased child user’s online activity prompted by a Schedule 5 request from a coroner.
Schedule 5 of the Coroners and Justice Act 2009 grants coroners various powers including the ability to serve a notice requiring a person to attend an inquest to give evidence and/or produce relevant documents. Under the new legislation, such notices will now be backed by Ofcom’s full enforcement powers. As such, coroners will be assisted by Ofcom’s knowledge and experience in the world of online services and the soon-to-be introduced duties in relation to online safety of children. Coroners will be able to access information, held by service providers such as Facebook, which could be relevant to the death of a child who had used such a platform. The reach of the coroner (and in practice, Ofcom) will therefore be increased and has been suggested to include:
1) The amount of time the child spent on the service when they accessed it;
2) Their user journey;
3) What content they liked, shared, rewatched, paused and reported; and
4) Whether other users had flagged the child’s safety or well-being before their death.
Should a service provider, on receiving a notice from a coroner, fail to comply, criminal sanctions could be imposed, resulting in senior management liability and/or imprisonment, as well as fines of up to £18 million or 10% of global turnover; a vast increase on the existing penalties of a maximum fine of £1,000.
The Report stage, which is a further chance to closely scrutinise elements of the Bill and make further changes, began on 6 July 2023. The Bill will then reach its third reading in the House of Lords.
Can the Bill do it all?
Whilst the father of Molly Russell, who continuously campaigns for better regulation of harmful content online welcomed the latest amendment to the Bill, other potential measures to support the intended aim of the legislation continue to be explored.
Outside of the Bill’s reach, and alongside the Schedule 5 provisions, reports suggests that the Government is exploring ways in which data protection and digital information legislation can support and complement the legislation. These avenues could result in a code of practice, requiring data to be preserved before a Schedule 5 notice has been delivered, for example, at the point a parent or enforcement officer contacts a helpline, or in the event there is constructive knowledge, such as when a death has been widely reported.
Reports also refer to the UK Government’s commitment to liaise with US Government counterparts in an attempt to secure coroners’ access to otherwise inaccessible social media content such as private messages created by potential and unintended barriers in US communication legislation.
In addition, it appears the Chief Coroner has committed to non-legislative guidance and the facilitation of training, for onward transmission to other coroners. Coroners should therefore expect to receive social media training in an attempt to arm them with the specific knowledge required to carry out inquests in which children’s engagement with online service providers is a possible factor in their death and which is being investigated.
What to expect
We are potentially some way from the Bill becoming legislation and coroners and Ofcom having their powers extended. However, we can expect in due course to have greater insight into the information held by service providers which could be relevant to the death of a child who had used such a platform.
That said, should the Bill’s provisions have the intended effect in relation to the online safety of children, it may be the case, and hoped, that inquests of this nature happen less often than in what is currently a largely unregulated online world.
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United Kingdom