Written evidence submitted by Dr Kim Barker and Dr Olga Jurasz, Open University Law School (OSB0071)

Opening Remarks

1. We welcome the Committee’s pre-legislative scrutiny of the Draft Online Safety Bill, the opportunity to share our expertise through the submission of written evidence.

2. We are responding to the call for evidence in our capacity as experts on social media abuse, online violence against women, online misogyny, and internet regulation. We have been working on issues relating to the harassment of women and girls in online spaces for 8 years.

3. We have in the past made significant contributions to the UN calls for evidence on online violence against women, to the Bracadale Review on Hate Crime in Scotland, the UK House of Commons Women and Equalities Committee inquiry into sexual harassment of women and girls in public spaces, the Scottish Government’s ‘One Scotland: Hate Has no Home Here’ Consultation on amending Scottish hate crime legislation, and to the Online Harms White Paper consultation. In addition, we have made representations to the Scottish Government as to the need to amend legislation to cover a wider range of harassing and abusive behaviours online and gave evidence to the Working Group on Misogyny and Criminal Justice in Scotland (chaired by Helena Kennedy QC). We are also the recipients of the 2020 Zero Tolerance Write to End Violence Against Women Public Recognition Award.

4. We are authors of ‘Online Misogyny as a Hate Crime: A Challenge for Legal Regulation’ (Routledge 2019) which is the first academic book to address the phenomenon of online misogyny and the merits of a legal response to it. Our research takes a holistic approach to the legal problems posed by online violence, merging criminal law, gender, human rights, and internet law expertise. Our research has been quoted by the Women & Equalities Committee[1] and also relied upon by Leanne Wood AM when calling for greater regulation of online abuse in November 2018.[2] We have also acted as consultants to the Council of Europe’s GREVIO (Group of Experts on Action against Violence against Women and Domestic Violence) regarding their first recommendation on online and technologically-facilitated violence against women and girls.

5. We would add that we are happy to provide further expertise or evidence if this is of use, and are happy to answer questions orally or in writing.

6. We are only commenting on the questions posed from the perspective of our research, which focuses on online abusive behaviours, offensive content, internet regulation (broadly conceived) and the impact abusive content has on the democratic, participation, and safety of women online. This expertise is placed within considerations of legal responses to addressing the challenges posed by illegal, harmful and abusive online content, with a specific focus on the gender dimension of these pressing issues.

Objectives

1. Will the proposed legislation effectively deliver the policy aim of making the UK the safest place to be online?

1.1.  The draft OSB marks a step towards creating a safer online environment. That said, it suffers from a number of shortcomings.

1.2.  In our expert opinion, the proposed Bill does not go far enough to ensure the safety of women and girls online. It is largely a gender-blind piece of draft legislation which – despite existing research[3] – continues to ignore the experiences and disproportionate impact of online abuse and online violence on women and girls. For instance, at a very basic level, the draft Bill does not encapsulate protections from gender-based abuse online. This stems from the omissions – which permeates the draft legislation – from the Online Harms White Paper which failed to explicitly name or capture, harms resulting from gender-based abuse online.[4] This is particularly alarming omission given the concerns about freedom of expression online as well as democracy – both of which are directly undermined by online violence against women and girls.

1.3.  As we argue elsewhere, the lack of consideration of the full and wide-ranging effects of ‘gender-based abuse online from the most ambitious of policy reform agendas designed to tackle safety online is representative of a broader policy lack of cohesion across different policy areas in England and Wales’[5] – especially in relation to the HM Government’s Ending Violence Against Women and Girls Strategy and the recent work of the Law Commission concerning abusive communications online. It is also symptomatic of ‘the broader lack of recognition by law makers of first, the harms of gender-based abuse (and online violence against women), and (...) the failure to appreciate the damage to participatory rights that emanates from unchecked and unchallenged online abuse motivated by gender’.[6]

2. Does the draft Bill make adequate provisions for people who are more likely to experience harm online or who may be more vulnerable to exploitation?

2.1.  Only to an extent. The draft Bill captures some vulnerable groups, such as children. However, by maintaining its gender-blind focus, its draft provisions do not adequately remedy (nor prevent) gender-based abuse online being directed at women and girls.

2.2.  This approach results in specific harms resulting from gender-based abuse online not being captured within this proposed legislation. This includes the experiences of intersectional abuse online. The effect of this omission is that women and girls who are more likely to experience gender-based abuse online are left without an appropriate remedy, legal protection, nor avenue for redress and meaning, – ultimately – that their safety online is compromised on a continuous basis.

3. Is the “duty of care” approach in the draft Bill effective?

3.1.  As noted above, the current approach largely excludes women’s and girls’ experiences of participating online.

3.2.  This approach is mirrored in the articulation of the ‘duty of care’ which is unlikely to require platforms or service providers to consider content amounting to OVAW. In addressing the categories of content, there is a requirement for there to be ‘an offence’ in instances of illegal content,[7] which given the omissions in the legislative landscape, makes it all but impossible for gender-motivated hate content to be captured within the ‘safety’ remit of the Draft Bill as it is currently conceived.

3.3.  For instance, as we noted previously[8], gender-motivated hate against women would be excluded from the scope because presently, hostility against women is not a feature of the legislative landscape when it comes to hate crime, and there are no statutory aggravations for underlying offences which are motivated by gender-based hostility.

3.4.  Finally, content moderation is dependent upon certain content first being recognised as harmful. Given the absence of the recognition of gender-based abuse online, OVAW, and online content amounting to incitement to violence against women as harmful within the draft OSB, such content cannot be effectively moderated as part of the “duty of care” approach. 

4. How does the draft Bill differ to online safety legislation in other countries (e.g. Australia, Canada, Germany, Ireland, and the EU Digital Services Act) and what lessons can be learnt?

4.1.  The draft Bill follows suit of other jurisdictions in attempting to address safety online.[9]

4.2.  In some respects, the draft Bill echoes various aspects of the EU Digital Services Act (DSA) – especially with regard to a focus on categorising (and removing) illegal content. That said, the EU DSA casts a broader approach towards online safety, also repeatedly committing to the protection of fundamental rights which, in the EU context, include equality.[10] As noted above, the UK’s approach has been lacking in terms of engagement with this particular right, showing limited appreciation for, or recognition of the detrimental effects of online violence against women and girls on gender equality – both online and offline.

4.3.  However, the common flaw between the proposed online safety legislation in the UK and elsewhere remains the limited commitment to making online spaces safe for women and girls by adequately capturing the challenges and threats associated (and resulting from) gender-based abuse online within such legislation. For instance, the German Netzwerkdurchsetzungsgesetz legislation dealing with hate speech online contains no reference to sexist hate speech – neither in terms of protections, remedies nor prohibitions.

4.4.  In our research, we refer to this noticeable avoidance of gender protections within the online safety legislation as ‘regulation by omission’, signifying the current status quo whereby OVAW is misguidedly portrayed as a ‘women’s issue rather than the issue of gender equality and equal participation in the public sphere.’[11]

4.5.  This (deliberate) omission also reinforces the dichotomy between online safety legislation, and violence against women legislation which are mistakenly excluded from joint consideration despite the urgency to address OVAW – and gender-based abuse online generally.

5. Does the proposed legislation represent a threat to freedom of expression, or are the protections for freedom of expression provided in the draft Bill sufficient?

5.1.  Freedom of expression is a paramount feature of a democratic society and must be protected. However, it is also important to emphasize that freedom of expression is not an absolute right and one that needs to be balanced vis-a-vis other rights and democratic values, including gender equality.

5.2.  Importantly, freedom of expression online is not realised effectively when women and girls stop expressing their views online and withdraw their participation in public and political life due to threats and experiences of online abuse. The damaging effects of online abuse on freedom of expression – and, by extension, democracy – has been particularly highlighted in relation to women politicians,[12] human rights defenders,[13] and journalists.[14]

5.3.  As noted by the UN Special Rapporteur on Violence Against Women and the UN Special Rapporteur on Freedom of Expression, gender equality and freedom of expression are mutually reinforcing rather than standing in opposition with one another.[15] Gender-based abuse online and OVAW consistently undermine gender equality and freedom of expression.

5.4.  In its present form, the draft OSB does not strike a fair balance between protecting freedom of expression and gender equality. This is largely due to the absence of duties to address harms related to gender-based abuse online, including OVAW and girls. By excluding gender-based abuse online from the scope and content provisions of the draft Bill, the drafters of the Bill have effectively foregone an opportunity to make a significant step towards making online spaces safe for women and girls.

Content

6. Are there other types of content that could or should be prioritised in the Bill?

6.1.  Yes. The Draft OSB gives priority to CSEA and terrorist content, to the detriment of other illegal content.

6.2.  The focus on content that is CSEA or terror related does not therefore prioritise other content, such as that relating to the incitement of violence, or harm against other groups.

6.3.  Content which incites violence, especially violence against women (VAW), and its online derivatives (OVAW), should be considered as priority content given the harmful impact it has, not only on women, but on wider society. This is especially damaging for equality, and for democratic participation.

7. The draft Bill specifically places a duty on providers to protect democratic content. What is your view of these measures and their likely effectiveness?

7.1.       The duty to protect democratic content is an important one. That said, it will offer only very limited protection to women online, especially politically active women online posting content relating to their politics, given that the duty relates to decisions on how to treat the content i.e., take downs, or restricted access.[16] That limited protection is likely to have ripple effects in terms of preventing adolescent and young women from expressing themselves online and from openly participating in public and political life amidst fears for their safety (online and offline) and levels of abuse.

7.2.       The duty as currently conceived of in the Draft OSB puts the consideration of what is protectable, and what is democratically important in the hands of private commercial entities that have a distinct interest in commercial revenue, and not restricting contentious posts from users. The ‘echo-chamber’ effect has a direct impact on the content which is seen, and shared. For determinations of democratic content to be left to commercial entities who are responsible for generating a profit, is tantamount to the sale of democratic speech.

7.3.       The duty therefore threatens freedom of expression, as well as democracy. Commercial entitles are positioned – through the provisions in the draft OSB – with the ultimate power over freedom of expression. This is particularly problematic, especially in environments and climates where there is political and democratic fragility.

7.4.       There are very few measures aimed at protecting the voices of the vulnerable, or those with a dissenting position or opinion, especially where there is no incentive to do so.

7.5.       Of greater concern is the focus that rests on content of democratic importance being limited to that relating to political debate in the UK or part of it.[17]

7.6.       These limitations do not protect women, particularly prominent or politically active women – especially those in the UK. Content relating to these women is often swamped with abusive, or misogynistic comment, and some is regularly – maliciously – reported for takedown as part of a concerted attack on women’s participation in democratic discourse online.

7.7.       As we have stated elsewhere:

“Online violence against women threatens freedom of expression and obstacle to realisation of women’s participatory rights”[18] and nothing in the Draft OSB proposes to address that obstacle.

7.8.       There are few, if any, protections enshrined within the Draft OSB to protect women’s democratic and participatory rights.

7.9.       Platforms are often very slow to respond to reports of online violence against women,[19] leaving the posted content to cause significant harm, not only to those receiving it, but also the bystanders who witness it. By not acting timeously to protect women from such content, or to reinstate content which has been over-zealously removed, we retain serious reservations over whether the Draft OSB contains measures which can (or will) effectively protect democratic content while protecting women who post it, or comment on it from the resulting backlash.[20] 

8. Are there any types of content omitted from the scope of the Bill that you consider significant? How should they be covered if so?

8.1.       Yes. There are types of content which have not been given equal consideration in the conception of the Draft OSB. It is our opinion that the Draft OSB introduces a hierarchy of content, and is therefore dismissive of content that is not CSEA or extremist content.

8.2.       The current Draft OSB provisions do not include content relating to the incitement of violence against women, nor content tantamount to OVAW. The emphasis falls on CSEA and extremist content, but these are not the only types of content.

8.3.       There is a significant missed opportunity with the current Draft OSB provisions to address a legislative gap and include provisions addressing online violence against women.

8.4.       For instance, the Draft OSB does not address content which is harmful, but which is not per se illegal in isolation, but which may amount to a course of conduct, and then become illegal. Such harmful content would not in single instances form enough to constitute an offence (and therefore, be regarded as ‘illegal’). For example, for an offence of harassment or stalking to occur, there needs to be a ‘course of conduct’ – generally regarded to be more than an isolated incident.[21] So, in this example, one abusive online post could be insufficient to constitute illegal content, whereas a series of posts by the same perpetrator could be considered illegal. This is one example of a nuanced area whereby the Draft OSB is not fit for purpose, and fails women.

8.5.       This leaves a gap when it comes to – for example – abusive and / or offensive posts on social media, which may straddle the boundary between harmful and legal, and illegal. While there are some mechanisms within the Draft OSB to focus on processes rather than content, the provisions do not address our concerns in respect of the types of content.

9. What would a suitable threshold for significant physical or psychological harm, and what would be a suitable way for service providers to determine whether this threshold has been met?

9.1.       The basis of physical or psychological harm on children or adults “of ordinary sensibilities”[22] is unhelpful in determining a suitable threshold. This is compounded by the caveats introduced in respect of “certain characteristics.”[23] While these conceptions may be useful in terms of legal tests, they are unlikely to be helpful for service and platform providers.

9.2.       The threshold should, in our expert opinion, relate directly to the harm caused. The conception of harms should therefore be broader, and include harms not traditionally legally recognised.[24] In our research, we identified a number of harms resulting from online abuse which are not traditionally defined by the law.[25]

10. Are definitions in the draft Bill suitable for service providers to accurately identify and reduce the presence of legal but harmful content, whilst preserving the presence of legitimate content?

10.1.   No. We have outlined our concerns in respect of omitted content above at 8.1.-8.5.

10.2.   The imposition of duties and decisions in respect of content categorisations on platforms and service providers will likely lead to a risk-averse compliance model, which will impact upon legitimate content detrimentally.

10.3.   We share the concern about this and are particularly worried about the impact it will have on the ability of women to fully and equally participate online, but also share political and democratic opinions.

Role & suitability of OFCOM

11.1.        The suggestion that OFCOM will be the regulatory body with oversight is one which causes further concern, but which is above all, disappointing.

11.2.   As we have stated elsewhere, we advocate for an Independent UK Adjudicatory Body to be equipped with a diverse range of experts, including those with expertise to address violence against women & girls.[26] 

11.3.     Placing the regulatory framework for content and the duties on a body more used to dealing with offline forms of media, is problematic, especially when dealing with duties relating to the safety of women and girls online. OFCOM has no record nor expertise in this area, so not only are there shortcomings within the Draft OSB in terms of the safety duties, but there are reciprocal and repeated shortcomings in the choice of oversight body.

11.4.   There is nothing in the choice of OFCOM which represents nor reflects a body with an understanding or appreciation of the nuanced safety concerns of women and girls, and their associated participatory rights.

September 2021