WhatsApp and the Online Safety Bill concerns
Ministers have been warned that the UK government risks losing WhatsApp, over concerns with the Online Safety Bill (the Bill).
Alex Craig, partner and head of our commercial and data protection team, summarises the Bill and the effects this will have.
What is the Bill?
The Bill is currently making its way through the House of Lords and is more than four years in the making. Its aim is to protect children and adults online by making social media companies more responsible for their users’ safety.
The Bill will make social networks legally responsible for keeping children and young people safe, for example:
- By removing illegal content or preventing it from appearing in the first place.
- Enforcing age limits and age-checking measures.
- Ensuring risks posed to children are more transparent by publishing risk assessments.
- Providing parents and children with accessible ways to report problems online.
The Bill will also protect adults through what the government has called a ‘triple shield’. Social media networks will be legally required to:
- Remove illegal content.
- Take down material in breach of their own terms of service.
- Provide adults with greater choice over the content they see and engage with.
The protections under the Bill are not just about removing existing illegal content, it is also about stopping it from appearing at all. This encourages social networks to consider how they design their sites to reduce the likelihood of them being used for criminal activity in the first place.
Some content is not illegal but could be harmful or age-inappropriate and social networks will need to prevent children from accessing it.
The Bill makes Ofcom the regulator to check platforms are complying and protecting users. It gives Ofcom the power to impose requirements for social networks to use technology to tackle significant social issues such as terrorism, with fines up to £18m or 10% of global turnover (whichever is greater) for such networks that don’t comply.
Platforms are required to use ‘best endeavours’ to use or develop technology to allow them to comply and will need to demonstrate they have processes in place to meet the requirements set out under the Bill.
How does this affect WhatsApp?
For messaging apps, such as WhatsApp, that use ‘end-to-end encryption’ (E2EE), the requirement to use ‘best endeavours’ to comply is technologically impossible without potentially forcing the proactive scanning of private messages.
This reverses the purposes of E2EE and could compromise the privacy of users. WhatsApp says this is a step they are not willing to take.
Ofcom has the power to take appropriate action against all social networks no matter where they are based if they are accessible to UK users. Given that 98% of WhatsApp users are outside the UK, WhatsApp would prioritise the security of its majority (non-UK) users, rather than lower its current security measures.
A relatively small market such as the UK is not something for which WhatsApp would compromise its billions of non-UK users.
Legislators have called on the Government to take the concerns seriously as there is a risk these networks will leave the UK, due to the significant pressure from Ofcom and the Bill on the networks to scan communications.
The Government’s stance
The Government has confirmed that the Bill will not ban E2EE or weaken encryption, but it warns that strong encryption cannot come at the cost of public safety.
Ofcom will only be able to direct networks to use accredited technology or use best endeavours to develop new technology, where it is effective, proportionate, and necessary to do so.
The government’s approach has been described as ‘intentional ambiguity’ as it says it has no intention to ban E2EE but refuses to confirm that it could not do so under the new powers in the Bill.
Conservative MPs have confirmed that the Bill doesn’t attach encryption, as it would only require networks to share information they have access to, which doesn’t include message content.
However, authorities should be able to access the background data behind users, such as usage of the app, contacts, location and names of user groups.
If users access WhatsApp through a web browser, the network can also collect information about websites visited before and after sending messages.
What does the future hold?
The Department for Science, Innovation and Technology want to find a way through the dispute and come up with an amicable solution. The Bill is making its way through government and is likely to receive Royal Assent during 2023.
However, it’s not clear when the provisions will likely come into force as the Secretary of State will need to make secondary legislation for the Bill to become fully operational. The government has said they will take a phased approach to bringing in the Bill’s duties as Ofcom’s powers come into force.
If you have any questions on the issues discussed in this article, or any other data protection query, please contact Alex using [email protected] or 0191 211 7911.
The Online Safety Bill will force social media companies to take responsibility for their users’ safety, such as removing illegal content for children and adults, and stopping children viewing harmful or age-inappropriate content. As well as removing content, the Bill aims to stop harmful or illegal content from appearing online at all.
A social media provider can be fined up to £18m or 10% of global turnover (whichever is greater) if it does not comply.
The Office of Communications (Ofcom) is responsible for making sure that social media platforms are protecting users, and can take action against those that don’t.