Written evidence submitted by Mencap (OSB0075)
About Royal Mencap Society and learning disability
- Our vision is for the UK to be the best place in the world for people with a learning disability to live happy and healthy lives. We do this by supporting the 1.5 million people with a learning disability in the UK and their families, improving health and care services as well as access to education and employment. We also directly support over 5,000 people with a learning disability to live their lives the way they want.
- A learning disability is caused by the way the brain develops before, during or shortly after birth. It is always lifelong and affects intellectual and social development.
- We know that being online and using social media can be a great way for many people with a learning disability to connect with others. As sadly, we know that people with a learning disability tend to have fewer friends, are less likely to be in a relationship, and have fewer opportunities for socialising than the general population. Research suggests that 1 in 3 young people with a learning disability spend less than 1 hour outside their home on a typical Saturday.
- Children and adults with a learning disability tend to have smaller social networks and their relationships are not as strong as those of children and adults without a learning disability. In many cases their network is limited to close family and carers.
- Being online and using social media can enable the development of positive friendships and relationships. In a study conducted by Mencap, we found that people with a learning disability and supporters also said that the internet was useful in terms of aiding wellbeing as well as making things more accessible.
- However, we know that many have negative experiences online, we also have concerns that the greater use of social media during the COVID-19 pandemic has potentially exposed more people with a learning disability to abuse, scamming and grooming.
- The COVID-19 pandemic has seen social media take on a growing importance in the social lives of an increasing number of people with a learning disability. Lockdowns, shielding and self-isolation have forced many people the begin utilizing social media or increase the use of it to remain in contact with friends and family. This increase in use of social media must be matched by an increase in the work to ensure that people with a learning disability can use these platforms safely and be empowered to do this.
- While being online has provided positive experiences for some increasingly we are finding that people with a learning disability say they often feel uncomfortable online due to actual or potential abusive comments. A number of respondents to our past surveys said they felt that they have been bullied or have received nasty messages.
- And according to recent ONS statistics, the prevalence for online bullying was significantly higher for children with a long-term illness or disability (26%) than those without (18%).
- People with learning disabilities have told us that social media companies need to do more to tackle bullying and abuse on their platforms. Some respondents to our survey suggested companies should make it much clearer that abuse towards disabled people will not be tolerated outright. Others suggested that websites could work towards a quality mark or ‘safe space’ logo to demonstrate their ethos towards safeguarding vulnerable people.
- We support the findings of the Petitions Committee’s 2019 inquiry into ‘Online Abuse and the experience of disabled people’ which together with the Law Commission has said that the current law on online abuse is not fit for purpose and requires reform. Crucially, we welcome the Law Society’s view that current criminal law does not treat all protected characteristics equally i.e. someone who is assaulted based on disability is not afforded the same protection as someone who is assaulted because of their race.
- The Bill will take the first important steps towards making being online safer for people with a learning disability. Introducing standardized regulations will remove the inconsistencies we see in the current approach to tackling online harms and dealing with reported content. However, there are a number of areas we would like to see clarified to ensure that the intentions of this Bill can be fully realized.
- The harms people with a learning disability face range from single incidents of online bullying to repeated targeting, financial scamming, harassment and even threats of violence. While all of these areas are covered in the Bill, there remains ambiguity especially around the areas of the Bill which deal with legal but harmful content.
- We would like to see the protected characteristics as listed in the Equalities Act 2010 listed or referred to in the ‘priority content’ as defined by the Secretary of State as per Clause 47. Doing this will provide the Government, regulator and social media platforms with a framework around which various elements of the Bill, such as ‘content that is harmful to adults’ can be defined and provide a direction of travel for understanding which groups should be prioritized.
- For example, the term “ordinary sensibilities” is used in Section 46(3), line 39, to help define ‘content that is harmful to adults’. While we understand that this inclusion is to protect freedom of speech, we have concerns that this creates ambiguity when discussing the impact of certain words or phrases which are considered derogatory by people with a learning disability. For example, the ‘r’ word can be considered highly offensive by people with a learning disability but others may not agree with this.
- Currently there are issues where some pejorative words are included in social media platform’s algorithms that deal with reported content, but others are not, which leads to highly offensive words remaining in circulation and users free to continue using these terms. We would like to see greater protection provided to people with characteristics and have this defined as characteristics as per the Equality Act 2010.
- While OFCOM will be consulted in the creation of these regulations we would like to see the addition of consultation with outside experts (such as the third sector) and in particular experts by experience to ensure that the regulations correctly identify the groups which should be protected under this legislation.
- We welcome the power for the Secretary of State to create and publish a ‘statement of strategic priorities’ and that this will be done with ‘appropriate’ people as well as OFCOM (Clauses 109 and 110). We hope that this statement will include a priority to tackle online harms against people with a learning disability.
Is the “duty of care” approach in the draft Bill effective?
- We welcome the introduction of duties of care in the Bill, however are concerned at the movement away from a general duty of care, as previously outlined by the Government, towards a more specific list of duties of care. Providing a more general duty of care, backed by listing protected characteristics, could provide the regulator with an increased ability to react to developments in the sector as well as simplifying the requirement to firstly identify these duties and update them when required.
- However, we welcome the duty to provide “clear and accessible” and consistent terms of service. People with a learning disability tell us that routes for raising concerns and registering complaints are often not accessible. In response to questions regarding the accessibility in reporting online abuse and bullying, Amy Clarke, Digital Assistant at Mencap, gave evidence to the Petitions Committee as part of said the above mention inquiry. She said:
“[Social media companies] can make it more obvious how you report abuse. There should put a big button to report abuse and make sure it’s accessible and easy to use. In my experience, it took ages for them to get back to me as well. If you report something, they should get back to you quicker, but also have a number to call to speak to someone. Not everyone is good with using emails so it is good to have someone to speak to.”
- We remain concerned at the lack of easy read information in the reporting system and the difficulty in reaching someone to speak with over the phone. Easy read information is a way of communicating, using jargon free, simple to understand text and accompanying images. While we continue to have discussions with social media companies on this issue we would like to see the Bill provide a requirement for the provision of accessible formats for information such as reporting mechanisms and terms and conditions.
- We are pleased that social media companies are engaging with us on this issue but the Bill should have additional elements to ensure that the process of dealing with harmful content is accessible as well as the terms of service. The current wording in 2(2) is vague as while terms of service must be “clear and accessible” there is no indication to what would constitute accessible and clear information. OFCOM will play an important role in ensure this is the case.
- Additionally, we believe the Bill, or subsequent guidance, should stipulate that the terms of service should include a full explanation of the processes through which content that is flagged as potentially harmful is dealt with. We welcome the inclusion of the requirement for terms of service to be applied consistently but believe that explicitly outlining these processes will provide much needed reassurance to users that they are being treated fairly.
Content in Scope
The draft Bill specifically places a duty on providers to protect democratic content, and content of journalistic importance. What is your view of these measures and their likely effectiveness?
- While we understand the requirement to provide protections for freedom of speech we are concerned that these terms could provide a loophole for people to continue carrying out online harms under their guise. It is difficult to imagine a situation where using harmful or discriminatory language could be deemed in the ‘democratic’ or ‘public interest’. Greater protections are required in this area to provide better balance between protecting freedom of speech but without this encroaching on the rights of others. One potential way to do this is through explicitly listing protected characteristics in the Bill, as mentioned above, so as to provide protections against content which is harmful or discriminatory towards these protected characteristics.
The role of Ofcom
- We welcome the provision for OFCOM to produce research about users’ experiences of regulated services but would like to see an addition of a requirement to understand the experience of groups most likely to experience online harms.
- We welcome the inclusion of ‘risk assessments’ for all existing and new user-to-user services. But we would welcome a regular review, perhaps every 5 years rather than a simple requirement to “ensure that the risk assessment is kept up to date” (Section 61(5) Line 5). This would ensure that risk assessments can keep up with the often rapid pace of developments in this field. Regular reporting will also provide an additional level of scrutiny for OFCOM on the practices of all user-to-user services which fall under Category 1 rules.
- The provision to extend OFCOM’s responsibility for media literacy to cover online harms is welcome (Clause 103). But we would like to see legislation stipulate that social media companies should be engaged with this work and help disseminate the educational materials through their networks.
- The creation of advisory committees under Clause 111 is welcome and we hope that these committee will include representatives of groups who are more likely to face online harms, such as people with a learning disability.