Wednesday 30 October 2024

Data Protection meets the Online Safety Act

This is sixth and final instalment in a series of reflections on Ofcom’s Illegal Harms consultation under the Online Safety Act 2023. Ofcom is due to publish the final version of its Illegal Harms Codes of Practice and Guidance in December.

The interaction between data protection law and the Online Safety Act’s illegal content duties attracted almost no attention during the passage of the Bill through Parliament. Nor does data protection garner more than a bare mention in the body of the Act itself. Nevertheless, service providers will have to perform their obligations compatibly with data protection laws.

However, data protection law does not sit entirely neatly alongside the OSA. It overlaps and potentially collides with some of the substantive measures that the Act requires service providers to take. This creates tensions between the two regimes.

As the process of implementing the OSA’s service provider duties has got under way, more attention has been directed to how the two regimes fit together.

At the most general level, while the Bill was still under discussion, on 25 November 2022 the ICO and Ofcom published a Joint Statement on online safety and data protection. This was an aspirational document, setting out shared goals of maximising coherence between the data protection and online safety regimes and working together to promote compliance with them. It envisaged a renewed formal memorandum of understanding between the ICO and Ofcom (yet to appear).  A more detailed Joint Statement on collaboration between the two regulators was issued on 1 May 2024.

The November 2022 statement recognised that:

“there are sometimes tensions between safety and privacy. For example, to protect users’ safety online, services might need to collect more information about their users, the content they view and their behaviour online. To protect users’ privacy, services can and should limit this data collection to what is proportionate and necessary.”

It went on:

“Where there are tensions between privacy and safety objectives, we will provide clarity on how compliance can be achieved with both regimes.”

On 16 February 2024, a week before the end of Ofcom’s Illegal Harms consultation period, the Information Commissioner’s Office published 47 pages of guidance on how data protection law applies to online content moderation processes - including moderation carried out to comply with duties under the Online Safety Act. It avowed an aim to support organisations carrying out content moderation in scope of the Act. Four months later, the ICO invited feedback on its Guidance.

Ofcom’s Illegal Harms consultation is itself liberally garnished with warnings that data protection law must be complied with, but less generously endowed with concrete guidance on exactly how to do so.

The ICO Guidance, although it put some flesh on the bones, was still pitched at a relatively high level. That was a deliberate decision. The accompanying Impact Assessment records that the ICO considered, but rejected, the option of:

“more extensive guidance discussing in depth how data protection law applies when developing or using content moderation”

in favour of:

“High level guidance setting out the ICO’s preliminary data protection and privacy expectations for online content moderation, and providing practical examples, with plans for further work as the policy area develops”.

The reason for this decision was that:

“it provides some degree of clarity for a wide variety of stakeholders, whilst still allowing the necessary flexibility for our policy positions to develop during the early stages of Ofcom’s policy and guidance development”.

The next, and perhaps most interesting, document was the ICO’s own submission to Ofcom’s Illegal Harms consultation, published on 1 March 2024. In this document the tensions between the OSA and data protection are most evident. In some areas the ICO overtly took issue with Ofcom’s approach.

What are some of the potential areas of tension?

Illegality risk assessment

The Ofcom consultation suggests that for the illegality risk assessment required under S.9 OSA service providers should, among other things, consider the following ‘core input’ to the risk assessment:

“assess any other evidence they hold that is relevant to harms on their service. This could include any existing harms reporting, research held by the service, referrals to law enforcement, data on or analysis of user behaviour relating to harms or product testing. Any types of evidence listed under Ofcom’s enhanced inputs (e.g. the results of content moderation, product testing, commissioned research) that the business already collects and which are relevant to the risk assessment, should inform the assessment. In effect, if the service already holds these inputs, they should be considered as core inputs.” [Table 9.4]

Ofcom adds that:

“… any use of users’ personal data (including any data that is not anonymised), will require services to comply with their obligations under UK data protection law. Services will need to make judgments on the data they hold to ensure it is processed lawfully, including providing appropriate transparency to users when the data is collected or further processed.” [Table 9.4]

The topic of core inputs caught the eye of the ICO, which observed:

“A key data protection consideration when processing personal data for risk assessment is the data minimisation principle set out in Article 5(1)(c) of the UK GDPR. This requires the personal data that services process to be adequate, relevant and limited to what is necessary in relation to the purposes for which it is processed. This means that services should identify the minimum amount of personal data they need to fulfil their purpose.” [p.7 – p.8]

Illegality judgements and data minimisation

Data minimisation is, more generally, an area of potential tension between the two regimes.

The Act requires service providers to make judgements about the illegality of user content. The less information is available to a service provider, the greater the risk of making arbitrary judgements (with potential ECHR implications). But the more information is retained or collected in order to make better judgements, the greater the potential conflict with the data minimisation principle (UK GDPR Article 5(1)(c)).

Section 192 of the OSA requires service providers to make illegality judgments on the basis of all relevant information reasonably available to a service provider. Ofcom’s Illegal Harms consultation document suggests that what is regarded as “reasonably available” may be limited by the constraints of data protection law:

“However, we recognise that in certain instances services may have access to information, which is relevant to a specific content judgement, but which is not either typically available to all services, which would require significant resources to collect, or the use of which would not be lawful under data protection or privacy laws. When making illegal content judgments, services should continue to have reasonable regard to any other relevant information to which they have access, above and beyond what is set out in the Illegal Content Judgements Guidance but only so long as this information is processed lawfully, including in particular in line with data protection laws.” [26.27]

The ICO cited this (and a related more equivocal passage at [A1.67]) as an example of where the Ofcom guidance is “less clear about the approach that services should take to balancing the need to make [illegal content judgements] with the need to comply with data minimisation.” The ICO said:

“The data minimisation principle requires that personal data being processed be relevant, adequate, and limited to what is necessary. Where an [illegal content judgement] can be made accurately without the need to process the additional personal data held by a service it would not be necessary for a service to process this information under data protection law. …

The text could also clarify that services may not always need to consult all available information in every instance, if it is possible to make an accurate judgement using less information.” [page 25)

There is, however, a lurking paradox of unknown unknowns. For an offence of a kind for which factual context is important, the service provider knows that relevant contextual information could exist, but does not know if it does exist. Such information (if it does exist) may or may not be available to the service provider: it could be wholly off platform and beyond its knowledge; or it could be accessible on the platform in principle, but potentially constrained by data protection law.

Without knowing whether further relevant contextual information in fact exists, how is a provider to determine whether it is able to make an accurate judgement with only the information that it knows about? How can a provider know whether further relevant information exists without going looking for it, potentially breaching data protection law in the process? The ICO Guidance says:

“You are complying with the data protection minimisation principle, as long as you can demonstrate that using [other contextual] information is: - necessary to achieve your purpose (e.g. because it ensures your decisions are accurate and fair ..."

Automated content moderation

The OSA contemplates that an Ofcom Code of Practice may for some use cases recommend service providers to undertake fully automated content moderation. The UK GDPR contains specific provisions in Article 22 about certain solely automated processing of personal data.

The Ofcom consultation says:

“Insofar as services use automated processing in content moderation, we consider that any interference with users’ rights to privacy under Article 8 ECHR would be slight. Such processing would need to be undertaken in compliance with relevant data protection legislation (including, so far as the UK GDPR applies, rules about processing by third parties or international data transfers).” [12.72]

Similar statements are made elsewhere in the consultation.

The ICO disagrees with the first sentence:

“From a data protection perspective, we do not agree that the potential privacy impact of automated scanning is slight. Whilst it is true that automation may be a useful privacy safeguard, the moderation of content using automated means will still have data protection implications for service users whose content is being scanned. Automation itself carries risks to the rights and freedoms of individuals, which can be exacerbated when the processing is carried out at scale.” [p.12]

It goes on:

“Our guidance on content moderation is clear that content moderation involves personal data processing at all stages of the moderation process, and hence data protection must be considered at all stages (including when automated processing is used, not just when a human looks at content). [p.12]

The ICO took the view that from a data protection law perspective, Ofcom’s proposed safeguards for the three recommended automated content moderation measures (CSAM perceptual hash matching, CSAM URL matching and fraud fuzzy keyword detection) are incomplete.

As to UK GDPR Article 22, the ICO commented in relation to the series of recommended measures that involve (or may involve) automated processing:

“The automated content moderation measures have the potential to engage UK GDPR Article 22, particularly measures 4G [Hash matching for CSAM] and I [Keyword detection regarding articles for use in frauds]. Article 22 of the UK GDPR places restrictions about when services can carry out solely automated decision-making based on personal information where the decision has legal or similarly significant effects. … To achieve coherence across the regimes it is important that the recommended code measures are compatible with UK GDPR Article 22 requirements.”

It is worth noting that UK GDPR Article 22 permits such solely automated decisions to be made where required by “domestic law”, provided that this sets out suitable safeguards. The new Data (Use and Access) Bill includes some changes to the Article 22 provisions.

Accuracy of illegal content judgements

Data protection law also encompasses an accuracy principle – UK GDPR Article 5(1)(d). The ICO Guidance assesses the application of this principle to be limited to the accuracy of facts underlying content judgements and to accurate recording of those judgements. However, the ICO Guidance also appears to suggest that the separate fair processing principle (UK GDPR Article 5(1)(a)) could have implications for the substantive accuracy of judgements themselves:

“You are unlikely to be treating users fairly if you make inaccurate judgements or biased moderation decisions based on their personal information."

If substantive accuracy could be both a fair processing matter and an OSA issue, how might this manifest itself? Some examples are:

Reasonably available information As already noted, S.192 of the OSA requires a service provider to make illegality judgements on the basis of all information reasonably available to it. Again as already noted, what is regarded as ‘reasonably available’ may be affected by data protection law, especially the data minimisation requirement to demonstrate that processing the data is necessary to achieve the purpose of an accurate and fair illegality judgement.

As to necessity, could the ‘unknown unknowns’ paradox (see above) come into play: how can a provider know if contextual information is available and relevant to the accuracy of the judgement that it has to make without seeking out the information? Could necessity be established simply on the basis that it is the kind of offence to which contextual information (if it existed) could be relevant, or would there have to be some justification specific to the facts of the matter under consideration, such as an indication that further information existed?

Generally, in connection with the information that service providers may use to make illegal content judgements, Ofcom says:

“When making illegal content judgements, services should continue to have reasonable regard to any other relevant information to which they have access, above and beyond what is set out in the Illegal Content Judgements Guidance but only so long as this information is processed lawfully, including in particular with data protection laws”; [26.27]

One example of this area of potential tension between the OSA and data protection is reference back to previous user complaints when making a judgement about content. In its section on handling user complaints, Ofcom’s consultation says:

“To the extent that a service needed to retain information to process complaints, this may include personal data. However, we are not proposing to recommend that services should process or retain any extra information beyond the minimum needed to comply with duties which are clearly set out on the face of the Act. To the extent that services choose to do so, this data would be held by the service subject to data protection laws.” [16.113]

Elsewhere, Ofcom says that “depending on the context, reasonably available information may include … complaints information” ([26.26, A1.66], subject to the proviso that:

“processing some of the types of information (‘data’) listed below has potential implications for users’ right to privacy. Services also need to ensure they process personal data in line with data protection laws. In particular, the likelihood is high that in considering U2U content a service will come across personal data including special category data and possibly criminal offence data, to which UK data protection laws apply.” [26.25]  

The ICO Guidance said:

“Data minimisation still applies when services use personal information to make illegal content judgements under section 192 of the OSA. Under data protection law, this means you must use personal information that is proportionate and limited to what is necessary to make illegal content judgements. …

Moderation of content can be highly contextual. Sometimes, you may need to use other types of personal information (beyond just the content) to decide whether you need to take moderation action, including users’ … records of previous content policy violations. …

You are complying with the data minimisation principle, as long as you can demonstrate that using this information is:

-        necessary to achieve your purpose (eg because it ensures your decisions are accurate and fair);

-        and no less intrusive option is available to achieve this.”

The ICO submission to the Ofcom consultation says:

“Paragraphs 16.26-27 of the consultation document state that Ofcom decided not to include a recommendation for services to keep complaints data to facilitate appeals as part of this measure. However, other consultation measures require or recommend the further use of complaints data, for example the risk assessment guidance, illegal content judgements guidance… . We think that it is important that the overall package of measures make clear what information Ofcom considers necessary for services to retain and use to comply with online safety obligations. This will help services to feel confident about complying with their data protection obligations.” [page 18]

Assuming that a service provider does have access to all relevant information, if substantive accuracy of an illegal content judgement were an aspect of the data protection fair processing principle, might that connote a degree of certainty that differs from the Act’s ‘reasonable grounds to infer’ standard in S.192 or the ‘awareness’ standard in Section 10(3)(b) (if they be different from each other)?

NCA reporting

Related to both automated processing and accuracy are the ICO’s submission comments on the obligation under S.66 for a service provider who becomes aware of previously unreported UK-linked CSAM to report it to the National Crime Agency.

The Ofcom consultation notes:

“Interference with users’ or other individuals’ privacy rights may also arise insofar as the option would lead to reporting to reporting bodies or other organisations in relation to CSAM detected using perceptual hash matching technology – for example, that a user was responsible for uploading content detected as CSAM to the service.” [14.80]

Ofcom goes on:

“As explained above, use of perceptual hash matching can result in cases where detected content is a false positive match for CSAM, or a match for content that is not CSAM and has been wrongly included in the hash database. These cases could result in individuals being incorrectly reported to reporting bodies or other organisations, which would represent a potentially significant intrusion into their privacy.” [14.84]

It adds:

“It is not possible to assess in detail the potential impact of incorrect reporting of users: the number of users potentially affected will depend on how services implement hash matching; while further details of the reporting requirements under the Act are to be specified by the Secretary of State in secondary legislation. However, the option includes principles and safeguards in relation to the hash database, the configuration of the technology, and the use of human moderators that are designed to help secure that the technology operates accurately. … [14.85]

In addition, reporting bodies have processes in place to triage and assess all reports received, ensuring that no action is taken in cases relating to obvious false positives. These processes are currently in place at NCMEC and will also be in place at the Designated Reporting Body in the NCA, to ensure that investigatory action is only taken in appropriate circumstances.” [14.86]

The ICO takes a less sanguine view of the consequences of reporting a false positive to the NCA:

“Ofcom refers to the principles and safeguards in the content moderation measures as being safeguards that are designed to help secure that the technology operates accurately in connection with user reports to the NCA. Accuracy is also a relevant consideration in data protection law. The accuracy principle requires that services take all reasonable steps to ensure that the personal data they process is not incorrect or misleading as to any matter of fact. Where content moderation decisions could have significant adverse impacts on individuals, services must be able to demonstrate that they have put sufficient effort into ensuring accuracy. 

We are concerned that the safeguards in measure 4G do not differentiate between the level of accuracy that is appropriate for reports to the NCA (which carries a particular risk of serious damage to the rights, freedoms and interests of a person who is incorrectly reported) and other significant but potentially less harmful actions such as content takedown. 

Our reading of measure 4G is that it could allow for the content moderation technology to be configured in such a way that recognises that false positives will be reported to the NCA. Whilst we acknowledge that it may not be possible to completely eliminate false positives being reported, we are concerned that a margin for error could be routinely “factored into” a service’s systems and processes as a matter of course.

This is unlikely to be compatible with a service taking all reasonable steps to ensure that the personal data it processes is not inaccurate.”

One point of particular interest is the ICO’s apparent distinction between the level of accuracy for content takedown and that for reporting to the NCA. Both Section 10(3)(b) (the takedown obligation) and Section 66 (as interpreted by Section 70) use the same language to trigger the respective obligations (emphasis added):

-        A duty to operate a service using proportionate systems and processes designed to where the provider is alerted by a person to the presence of any illegal content, or becomes aware of it in any other way, swiftly take down such content. (S.10(3)(b)

-        … must operate the service using systems and processes which secure (so far as possible) that the provider reports all detected and unreported CSEA content present on the service to the NCA. … CSEA content is “detected” by a provider when the provider becomes aware of the content, whether by means of the provider’s systems or processes or as a result of another person alerting the provider.  (S.66/70)

The ICO argument appears to suggest that data protection considerations should inform the construction of the sections, with the result that the same word ‘aware’ in the two OSA provisions would connote different levels of confidence in the accuracy of the information on which a decision is based.

End to end encryption

The Bill was loudly and repeatedly criticised by privacy and civil liberties campaigners for potentially threatening the ability to use end-to-end encryption on private messaging services. The provision that gave rise to this was what is now Section 121: a power for Ofcom to require, by notice to a U2U service provider, use of accredited technology to identify and swiftly take down, or prevent individuals encountering, CSEA content, whether communicated publicly or privately by means of the service. Service providers would have the option of developing or sourcing their own equivalent technology.

Under Section 125, a notice requiring the use of accredited technology is to be taken as requiring the provider to make such changes to the design or operation of the service as are necessary for the technology to be used effectively.

The concern with these provisions was that the effect of a notice could be to require a private messaging provider to cease using E2E encryption if it was incompatible with the technology required by the notice.

The S.121 power is self-standing, separate from the Act’s safety duties on service providers. It will be the subject of a separate Ofcom consultation, scheduled for December 2024.

Concomitantly, Ofcom is prevented from using its safety duty enforcement powers to require proactive technology to be used by a private communications service (S.136(6)). Broadly speaking, proactive technology is content identification technology, user profiling technology, or behaviour identification technology.

That is also reflected in the Schedule 4 restrictions on what Ofcom can recommend in a Code of Practice:

“Ofcom may not recommend in a Code of Practice the use of the technology to analyse user generated content communicated “privately”, or metadata relating to user-generated content communicated “privately” [14.14]

Thus, in effect, the Act’s safety duties cannot be interpreted so as to require a private communications service to use proactive technology. That is a matter for the self-standing S.121 power.

The Ofcom consultation states that E2E encryption is not inherently bad. It goes on to acknowledge the benefits of E2E encryption:

“The role of the new online safety regulations is not to restrict or prohibit the use of such functionalities, but rather to get services to put in place safeguards which allow users to enjoy the benefits they bring while managing risks appropriately” [Vol 2, Introduction]

Nevertheless, it also cites E2E encryption as a risk factor. For instance, end-to-end encryption poses the risk that “offenders often use end-to-end encrypted services to evade detection” [Vol 2, Introduction] and “end-to-end encryption guarantees a user’s privacy and security of messages, but makes it harder for users to moderate for illegal content.” [6.12]; and “Private messaging services with encryption are particularly risky, as they make the exchange of CSAM harder to detect.” [6C.139] “If your service allows encrypted messaging, we would expect you to consider how this functionality can be used by potential perpetrators to avoid monitoring of communications while sharing illegal content such as CSAM or conducting illegal behaviour.” [Table 14] The theme is repeated numerous times in relation to different offences.

In relation to its specific proposal for ‘hash matching’ to detect and remove known CSAM (Child Sexual Abuse Material), Ofcom says:

“Consistent with the restrictions in the Act, this proposal does not apply to private communications or end-to-end encrypted communications. We are not making any proposals that would involve breaking encryption. However, end-to-end encrypted services are still subject to all the safety duties set out in the Act and will still need to take steps  to mitigate risks of CSAM on their services” [Overview]

The ICO did not challenge Ofcom’s evidence bases for concluding that E2E encryption was a risk. However, it said:

“We are concerned that the benefits of these functionalities are not given enough emphasis in the risk assessment guidance and risk profiles (Annex 5). These are the documents that U2U services are most likely to consult on a regular basis. We consider that there is a risk that the risk assessment process may be interpreted by some services to mean that functionalities such as E2EE and anonymity/pseudonymity are so problematic from an online safety perspective that they should be minimised or avoided. If so, the risk assessment process could create a chilling effect on the deployment of functionalities that have important benefits, including keeping users safe online.”

and:

“In summary, we therefore suggest that the guidance should make it clear that the online safety regime does not restrict or prohibit the use of these functionalities and that the emphasis is on requiring safeguards to allow users to enjoy the benefits while managing risks appropriately.

Whilst ICO’s comments do not necessarily reflect tension between the OSA and data protection regimes as such, a difference of emphasis is detectable.

Generally, critics of the Act have long argued that requiring service providers to assess illegality is a recipe for arbitrary decision-making and over-removal of legal user content, likely to constitute an unjustified interference with the right of freedom of expression.  As Ofcom and the ICO attempt to get to grips with the practical realities of the duties, data protection and privacy are now joining the fray.


Friday 20 September 2024

Public order: from street protest to the Online Safety Act

Assiduous readers of this blog will know of my fondness for working through concrete examples to illustrate how, once they come into force (now likely to be in Spring next year), platform illegal content duties under the UK Online Safety Act 2023 (OSA) might pan out in practice.

A recurring theme has been that making judgements about the legality or illegality of user content, as platforms are required to do by the OSA, is not a simple matter. The task verges at times on the impossible: platforms are required to make complex legal and factual judgements on incomplete information. Moreover, the OSA stipulates a relatively low threshold for a platform to conclude that content is illegal: reasonable grounds to infer. The combined result is that the OSA regime is likely to foster arbitrary decisions and over-takedown of legal user content.

The newest opportunity to hypothesise a concrete example is presented by the acquittal of Marieha Hussain, who was charged with a racially aggravated public order offence for carrying, at a pro-Palestine demonstration, a placard depicting Rishi Sunak and Suella Braverman as coconuts.  The prosecution alleged that this was a well-known racial slur. The district judge held that it was part of the genre of political satire, and that the prosecution had not proved to the criminal standard that it was abusive.

Ms Hussain was prosecuted for an offence in a public street, to which the Online Safety Act would not directly apply. However, what if an image of the placard appeared online? If displaying the placard in the street was sufficient to attract a criminal prosecution, even if ultimately unsuccessful, could the OSA (had it been in force) have required a platform to take action over an image of the placard displayed online? 

As it happens the prosecution in Marieha Hussain’s case was prompted by someone posting a photograph of the placard online, accompanied by a critical comment. That was followed by a response from the Metropolitan Police, who were tagged in the post:

 


If the Online Safety Act duties were in force (and assuming that the court had not yet delivered its acquittal verdict), how would a service provider have to go about deciding whether an online post of a photograph of the placard should be treated as illegal? How would that differ from the court process? Could the differences lead a service provider to conclude that a post containing an image of the placard should be removed? Could (or should) the fact that a prosecution had been instigated for display of the placard in the street, or (before that) that the police had indicated an interest, affect the platform’s illegality judgement?

The prosecution

As far as can be understood from the press reports, Ms Hussain was prosecuted for a racially aggravated offence under Section 5 of the Public Order Act 1986. The Section 5 offence (so far as relevant to this example) is:

“(1) A person is guilty of an offence if he—

(a) uses… abusive words or behaviour…, or

(b) displays any writing, sign or other visible representation which is… abusive,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

(3) It is a defence for the accused to prove—

(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or

(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(c) that his conduct was reasonable.

Additionally, someone is guilty of the offence only if they intend their words or behaviour, or the writing, sign or other visible representation, to be… abusive, or are aware that it may be… abusive.

The racially aggravated version of the offence (which carries a larger fine) applies if the basic offence is committed and:

“(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial …  group; or

(b) the offence is motivated (wholly or partly) by hostility towards members of a racial…  group based on their membership of that group.”

The ‘victim’ for the purpose of (a) is the person likely to be caused harassment, alarm or distress.

Both offences are triable only in the magistrates’ court. If the defendant is acquitted of the racially aggravated offence the court may go on to consider the basic offence, but only if it is charged in the alternative (which the CPS Charging Guidance says it should be).

Priority offences

Both the basic offence under Section 5 and the racially aggravated version are within the scope of the Online Safety Act. They are listed in Schedule 7 as ‘priority offences’. As such, not only is a service provider required swiftly to take down illegal content if it becomes aware of it (OSA Section 10(3)(b)), but it may be required to take proportionate proactive prevention measures (OSA Section 10(2)(a)).

The Section 5 offence attracted attention during the Online Safety Bill’s passage through Parliament. On 19 May 2022 the Chair of the Joint Parliamentary Committee on Human Rights, Harriet Harman MP, wrote to the then Secretary of State, Nadine Dorries. She said:

“It is hard to see how providers, and particularly automated responses, will be able to determine whether content on their services fall on the legal or illegal side of this definition”.

She went on:

“…how will a provider of user-to-user services judge whether particular words or behaviour online are “abusive” rather than merely offensive and whether or not they are likely to cause someone “distress” sufficient to amount to a criminal offence?”

and

“Will the inclusion of section 5 Public Order Act 1986 within the category of priority illegal content, in practice, result in service providers removing content that does not meet the criminal threshold, potentially resulting in an interference with the Article 10 rights of users?”

The DCMS Minister, Chris Philp MP, replied on 16 June 2022. In response to the specific questions about Section 5 he recited the general provisions of the Bill.

JUSTICE, in its Lords Second Reading Briefing, elaborated on the concerns of the Joint Human Rights Committee and called for Section 5 to be removed from the category of priority illegal content. That did not happen.

So far, so clear. Now the picture starts to get foggy, for a variety of reasons.

Making an Illegal Content Judgement

First, is either version of the Section 5 offence capable of applying online at all? Inclusion of the Section 5 offence in Schedule 7 is not conclusive that it can be committed online. The reason for inclusion of offline offences is that, in principle, it is possible to encourage or assist online an offence that can only be committed offline. Such inchoate offences (plus conspiracy, aiding and abetting) are also designated as priority offences. (Parenthetically, applying the inchoate offences to online posts presents its own problems in practice – see here.)

One potential obstacle to applying the Section 5 offences online is the requirement that the use or display be: “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”. Does this require physical presence, or is online audibility or visibility sufficient? If the latter, must the defendant and the victim (i.e. the person likely to be caused harassment, alarm or distress) be online simultaneously? The Law Commission considered the simultaneity point in its consultation on Modernising Communications Offences, concluding that the point was not clear.

Ofcom, in its draft Illegal Content Judgements Guidance, does not address the question expressly. It appears to assume that the “within hearing or sight” condition can be satisfied online. That may be right. But it is perhaps unfortunate that the Act provides no mechanism for obtaining an authoritative determination from the court on a point of law this kind.

Second, which offence should be considered? CPS practice is to charge the more serious racially aggravated offence if there is credible evidence to prove it. Under the Online Safety Act, the opposite applies: the simpler, less serious offence should be the one adjudged. The Ofcom consultation documents explain why:

“In theory, in order to identify a racially aggravated offence, the service would not only need to identify all the elements of the Public Order Act offence, but also all the elements of racial or religious aggravation. But in practice, in order to identify the content as illegal content, the service would only need to show the elements of the underlying Public Order Act priority offence, because that would be all that was needed for the takedown duty to be triggered. The racial aggravation would of course be likely to make the case more serious and urgent, but that would be more a matter of prioritisation of content for review than of identifying illegal content.” [26.81]

Third, how strong does the evidence of an offence have to be?

In court, a criminal offence has to be proved beyond reasonable doubt. The district judge in the Hussain case concluded that the placard was: “part of the genre of political satire” and that as such, the prosecution had “not proved to the criminal standard that it was abusive”. The prosecution had also not proved to the criminal standard that the defendant was aware that the placard may be abusive. The court reached those decisions after a two day trial, including evidence from two academic expert witnesses called by the defence to opine on the meaning of ‘coconut’.

A service provider, however, must treat user content as illegal if it has “reasonable grounds to infer” that it is illegal. That is a lower threshold than the criminal standard.

Could that judgement be affected by the commencement of a criminal prosecution? The Director of Public Prosecutions’ Charging Guidance says that for a criminal prosecution to be brought the prosecutor: “must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction…” It must be “more likely than not” that “an objective, impartial and reasonable jury, bench of magistrates or a judge hearing a case alone, properly directed and acting in accordance with the law, would convict the defendant of the charge alleged.”

Whether “reasonable grounds to infer” is a lower threshold than the “more likely than not to convict” Charging Guidance test for commencing a prosecution is a question that may merit exploration. If (as seems likely) it is lower, or even if it is just on a par, then a platform could perhaps be influenced by the fact that a prosecution had been commenced, in the light of the evidential threshold for that to occur. However, it does not follow from commencement of a prosecution for a street display that the charging threshold would necessarily be surmounted for an online post by a different person.

The more fundamental issue is that the lower the service provider threshold, the more likely that legal content will be removed and the more likely that the regime will be non-compliant with the ECHR. The JUSTICE House of Lords briefing considered that ‘reasonable grounds to infer’ was a ‘low bar’, and argued that provisions which encourage an overly risk-averse approach to content removal, resulting in legitimate content being removed, may fall short of the UK’s obligations under the ECHR.  

The Ofcom consultaion observes:

“What amounts to reasonable grounds to infer in any given instance will necessarily depend on the nature and context of the content being judged and, particularly, the offence(s) that may be applicable.” [26.15]

The significance of context is discussed below. Notably, the context relevant to criminal liability for a street display of a placard may be different from that of an online post of an image of the placard by a third party.

The service provider’s illegal content judgement must also be made on the basis of “all relevant information that is reasonably available” to it. Self-evidently, a service provider making a judgement about a user post would not have the benefit of two days’ factual and expert evidence and accompanying legal argument, such as was available to the court in the Hussain prosecution. The question of what information should be regarded as reasonably available to a service provider is a knotty one, implicating data protection law as well as the terms of the OSA. Ofcom discusses this issue in its Illegal Harms consultation, as does the Information Commissioner’s Office in its submission to the Ofcom consultation. The ICO also touches on it in its Content Moderation Guidance.

In order for the Section 10(3)(b) swift takedown obligation to be triggered, the service provider must have become aware of the illegal content. Ofcom’s consultation documents implicitly suggest that the awareness threshold is the same as having reasonable grounds to infer illegality under Section 192. That equation is not necessarily as clear-cut as might be assumed (discussed here).

Fourth, whose awareness?

Ms Hussain’s placard was held not to be abusive. The court also held that she did not have the necessary awareness that the placard may be abusive. A service provider faced with an online post of an image of a placard would have to consider whether it had reasonable grounds for an inference that the placard was abusive and that the person who posted it (rather than the placard bearer) had the necessary awareness.

When it comes at least to reposting, Professor Lorna Woods, in her comments on the Ofcom Illegal Content Judgements Guidance, has argued that a requirement to evaluate the elements of an offence for each person who posts content is too narrow an interpretation of the OSA:

“The illegal content safety duties are triggered by content linked to a criminal offence, not by a requirement that a criminal offence has taken place. … The requirement for reasonable grounds to infer a criminal offence each time content is posted … presents an overly restrictive interpretation of relevant content. Such a narrow perspective is not mandated by the language of section 59, which necessitates the existence of a link at some stage, rather than in relation to each individual user. … There is no obligation to look at the mental state of each individual disseminator of the content”

Professor Woods gives as an example the reposting of intimate images without consent.

S.59 (which defines illegal content) has expressly to be read together with S.192 (illegal content judgements). S.192, at first sight, reads like an instruction manual for making a judgement in relation to each individual posting. Be that as it may, if Professor Woods’ argument is correct it seems likely for many kinds of offence (even if not for the intimate images offence) to reintroduce the problems that the Independent Reviewer of Terrorism Legislation identified with S.59 (then Clause 52). The Bill was subsequently amended to add S.192, it is assumed in response to his criticisms:

“2. ...Intention, and the absence of any defence, lie at the heart of terrorism offending. ... 

16. The definition of “terrorism content” in clause 52(5) is novel because under terrorism legislation content itself can never “amount to” an offence. The commission of offences requires conduct by a person or people.

17. Clause 52(3) attempts to address this by requiring the reader of the Bill to consider content in conjunction with certain specified conduct: use, possession, viewing, accessing, publication or dissemination.

18. However, as Table 1 shows, conduct is rarely sufficient on its own to “amount to” or “constitute” a terrorism offence. It must ordinarily be accompanied by a mental element and/or take place in the absence of a defence. …

23. … It cannot be the case that where content is published etc. which might result in a terrorist offence being committed, it should be assumed that the mental element is present, and that no defence is available.

24. Otherwise, much lawful content online would “amount to” a terrorist offence.”

My own subsequent submission to the Public Bill Committee analysed Clause 52, citing the Independent Terrorism Reviewer's comments, and concluded in similar vein:

"Depending on its interpretation the Bill appears either:

6.21.1 to exclude from consideration essential ingredients of the relevant criminal offences, thereby broadening the offences to the point of arbitrariness and/or disproportionate interference with legitimate content; or

6.21.2 to require arbitrary assumptions to be made about those essential ingredients, with similar consequences for legitimate content; or

6.21.3 to require the existence of those ingredients to be adjudged, in circumstances where extrinsic factual material pertaining to those ingredients cannot be available to a filtering system.

In each case the result is arbitrariness (or impossibility), significant collateral damage to legal content, or both.”

An interpretation of the OSA that increases the likelihood of lawful content being filtered or taken down also increases concomitantly the risk of ECHR incompatibility. (See also, ‘Item by Item Judgements’ below)

On a different point, Ofcom appears to suggest that the wider and more general the audience for a controversial post, the greater the likelihood of awareness being inferred:

“A service must also draw an inference that the person posting the content concerned was at least aware that their behaviour may be abusive. Such awareness may reasonably be inferred if the abusive behaviour is very obviously likely to be distressing to most people and is posted somewhere with wide reach.” [A3.77]

In contrast:

“It is less likely to be reasonably inferred if content is posted to a place where, for example, only persons sharing similar sorts of content themselves are likely to see it.” [A3.77] 

Fifth, any defence?

As to the Section 5 defence of reasonable conduct, the district judge said that had it been necessary to go that far, she would have found Ms Hussain's conduct to be reasonable in that she was exercising her right to freedom of expression, and the judge would not have been satisfied that the prosecution was a proportionate interference with her right, or necessary in a democratic society. 

Our hypothetical assumes that no court ruling has been made. If the service provider has concluded that there are reasonable grounds to infer abusive content and awareness, how should it evaluate the possibility of a defence such as reasonable conduct?

When making an illegal content judgement a service provider can only base a judgement on the availability of a defence if it positively has some reason to infer that a defence to the offence may be successfully relied upon. That is the effect of OSA S.192(6)(b):

(6) Reasonable grounds for that inference exist in relation to content and an offence if … a provider—

(a) has reasonable grounds to infer that all elements necessary for the commission of the offence, including mental elements, are present or satisfied, and

(b) does not have reasonable grounds to infer that a defence to the offence maybe successfully relied upon.

An obvious instance of positive grounds to infer a Section 5 reasonable conduct defence on the part of the poster would be a comment added to the image.

In a different context (terrorism), Ofcom has reached the same conclusion as to the need for positive grounds:

“There is a defence of ‘reasonable excuse’ which may be harder for services to make reasonable inferences about, but they only need to consider it if there are positive grounds to do so.” [26.93]

Similarly, for the offence of stirring up racial hatred:

“In cases where there are no reasonable grounds to infer intent it is a defence for a person to show that he was not aware that the content might be insulting or abusive. However, positive grounds to infer this would need to be available to the service.” [A3.90]

As to the Section 5 “reasonable conduct” defence, a service provider hypothetically considering the original online post of the Marieha Hussain placard in the absence of a court judgment would have to consider whether, if it considered that there were reasonable grounds to infer that the placard was abusive and that the post satisfied the other elements of the offence, the comment by the poster (in addition to anything inferrable from the nature of the posted image) provided reasonable grounds to infer that a defence of reasonable conduct might be successfully relied upon. 

It might also be relevant to consider whether there were reasonable grounds to infer that the original placard holder could have have a reasonable conduct defence for the street display, as the judge in the Hussain case held that she would have done. However, the defence is specific to the conduct of each defendant, not a finding about the nature of the content. 

As the judge's remarks demonstrate, consideration of the reasonable conduct defence can result in the service provider making judgements about the necessity and proportionality of the interference with freedom of expression. 

Ofcom’s Illegal Content Judgements Guidance says:

“Services should take a common-sense approach to considering whether the behaviour displayed in the content could be considered reasonable. For example, it may be reasonable (even if unwise) to abuse someone in response to abuse.” [A3.68]

Common sense also comes to the aid of the harassment and distress element of the Section 5 offence:

“Services should consider any information they hold about what any complainant has said about the emotional impact of the content in question, and take a common-sense approach about whether it is likely to cause harassment or distress.” [A3.27]

Appeals to common sense bring to mind the Oxford Reference definition of palm tree justice: 

“Ad hoc legal decision-making, the judge metaphorically sitting under a tree to make rulings based on common sense rather than legal principles or rules.”

The perceived value of guidance based on common sense may also depend on whether one shares the William O. Douglas view that ‘Common sense often makes good law’ or that of Albert Einstein: “Common sense is the collection of prejudices acquired by age eighteen”.

In addition to reasonable conduct, Section 5 of the Public Order Act provides a defence “that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress”.

Ofcom suggests that a post that is legal may be rendered illegal through the poster being deprived of the defence as the result of a notification:

“it is a defence if it is reasonable to infer that the person had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment or distress. This is most likely to be relevant where a user is challenging a takedown decision (but of course if the person becomes aware as a result of the takedown decision that such a person was within hearing or sight, the content would become illegal content).” [A3.33]

That and Ofcom’s comment on the relationship between awareness and wide reach are both reminiscent of the concerns about the “harmful communications” offence that was originally included in the Bill, then dropped.

Sixth, what is the significance of context? The Hussain decision appears to have turned on the court’s finding of what was ‘abusive’ in the context of the display of the placard (albeit that the racially aggravated element of the alleged offence inevitably focused attention on whether the placard was specifically racially abusive).

The Ofcom Illegal Judgments Guidance on the Section 5 offence emphasises the significance of context:

“However, the context should be taken into account carefully, since abusive content may also carry political or religious meaning, and will be more likely to be a reasonable exercise of the right to freedom of expression if it is.” [A3.79]

While some of the context available to a service provider may be the same as that available to a court (for instance it is apparent on the face of the image of the Hussein placard that it was a political comment), much of the available context may be different: different person, different place, different audience, additional comments, no expert witnesses. Add to that a different standard of proof and a different statutory framework within which to judge illegality, and the possibility of a different (most likely more restrictive) conclusion on legality from that which a court would reach (even if considering the same version of the offence) is significant.

The last word on context should perhaps go to Ofcom, in its Illegal Content Judgements Guidance on Section 5:

“We have not given any usage examples here, due to the particularly strong importance of context to these judgements.” [A3.81]

Item by item judgements?

While some may argue that the OSA is about systems and processes, not content, there is no doubt (pace Professor Woods’ argument noted above) that at least some of its illegality duties require platforms to make item by item content judgements (see discussion here). The duties do not, from a supervision and enforcement point of view, require a service provider to get every individual judgement right. They do require service providers to make individual content judgements.

Ofcom evidently expects service providers to make item by item judgements on particular content, while noting that the function of the online safety regime is different from that of a court:

“The ‘beyond reasonable doubt’ threshold is a finding that only UK courts can reach. When the ‘beyond reasonable doubt’ threshold is found in UK courts, the person(s) responsible for the relevant illegal activity will face criminal conviction. However, when services have established ‘reasonable ground to infer’ that content is illegal according to the Act, this does not mean that the user will necessarily face any criminal liability for the content and nor is it necessary that any user has been prosecuted or convicted of a criminal offence in respect of such content. When services make an illegal content judgement in relation to particular content and have reasonable grounds to infer that the content is illegal, the content must however be taken down.” [26.14]

Critics of the OSA illegality duty have always doubted the feasibility or appropriateness of requiring platforms to make individual content legality judgements, especially at scale. Those coming at it from a freedom of expression perspective emphasise the likelihood of arbitrary judgements, over-removal of legal content and consequent incompatibility with the European Convention on Human Rights.

The ‘systems and processes’ school of thought generally advocates harm mitigation measures (ideally content-agnostic) in preference to item-by-item content judgements. Relatedly, the Online Safety Network recently suggested in a Bluesky post that “the government needs to amend the Act to make clear that - once content has been found to be illegal content – it should continue to be categorised that way”. That would reduce the need for successive item-by-item illegality judgements in relation to the same content, and would make explicit what Professor Woods has argued is already the proper interpretation of the Act (see above).

The comments of the Online Safety Network were made in the specific context of the non-consensual intimate image offence. For offences where the gravamen lies in the specific nature of the prohibited content, and the role of any mental element, other condition or defence is secondary (such as ensuring only that accidental behaviour is not criminalised), there may be some force in the suggestion that the same content should always be treated in the same way (at least if the initial finding of illegality has been verified to a high standard). Ofcom’s proposed CSAM image filtering duties, for instance, would operate on that basis.

Elevated to a general principle, however, the suggestion becomes problematic. For offences where the conduct element is broad or vague (such as the Section 5 offence), or where context is significant, or where the heavy lifting of keeping the offence within proper bounds is done by the mental element or by defences, it would be overreaching (and at serious risk of ECHR incompatibility) automatically to deem the same item of content to be illegal regardless of context, intention or of any other factors relevant to illegality. In the terrorism field filtering algorithms have had trouble distinguishing between illegal terrorist content and legal news reports of the same content. To deem that content always to be illegal for the purpose of filtering and takedown duties would be controversial, to say the least.

The Online Safety Network went on to comment that “the purpose of the regime is not to punish the person sharing the content, but to control the flow of that content.” It is true that the safety duties do not of themselves result in criminal liability of the user. But “don’t worry, we’re only going to suppress what you say” does not feel like the most persuasive argument for an interference with lawful freedom of expression.

[The original version of this post stated: "Since Ms Hussain’s placard was held not to be abusive, it appears that the magistrates’ court did not rule on any available defences." Now updated, with some consequential additions to the discussion of the reasonable conduct defence, in the light of Professor Augustine John's fuller account of the judge's ruling. [21 September 2024) 



Monday 9 September 2024

Illegal content judgements - fitting the Illegal Harms consultation to the Online Safety Act

This is Part 5 of a series of reflections on Ofcom’s Illegal Harms Consultation under the Online Safety Act (OSA). Ofcom’s consultation (which closed in February 2024) ran to a mammoth 1728 pages, plus an additional 77 pages in its recent further consultation on torture and animal cruelty. The results of its consultation are expected in December.

For readers not fully conversant with the OSA, the reason why Ofcom has to consult at all is that the OSA sets out most of the illegal content service provider duties in stratospherically high-level terms, anticipating that Ofcom will bring the obligations down to earth by means of concretely articulated Codes of Practice and Guidance.  If the Act were an algorithm, this would be a non-deterministic process: there is no single answer to the question of how the high-level duties should be translated into detailed measures. The number and range of possibilities are as good as infinite.

The main contributor to this state of affairs is the way in which the Act frames the service providers’ duties as requirements to put in place “proportionate” systems and processes designed to achieve stipulated aims.  That leaves tremendous latitude for debate and judgement. In simple terms, Ofcom’s task is to settle on a set of systems and processes that it considers to be proportionate, then embody them in concrete Codes of Practice, recommended measures and guidance.  Those proposed documents, among other things, are what Ofcom has been consulting on.

Of course Ofcom does have to work within the statutory constraints of the Act. It cannot recommend measures that stray outside the boundaries of the Act.  The measures that it does recommend should interact sensibly with the duties defined in the Act. For abstractly expressed duties, that presents little problem. However, a tightly drawn statutory duty could have the potential to collide with specific measures recommended by Ofcom.

Awareness of illegality

One such duty is Section 10(3)(b). This requires a U2U service provider to have proportionate systems and processes in place designed swiftly to take down illegal content upon becoming aware of it. This is a relatively concrete duty, verging on an absolute takedown obligation (see discussion in Part 3 of this series).

A service provider will therefore need to understand whether - and if so at what point – the takedown obligation kicks in when it is implementing Ofcom’s operational recommendations and guidance. That turns on whether the service provider has ‘become aware’ of the presence of illegal content.

Behind that innocuous little phrase, however, lie significant issues of interpretation. For instance, if an automated system detects what it thinks is illegal content, does that trigger the Section 10(3)(b) takedown duty? Or is it triggered only when a human becomes aware? If human knowledge is necessary, how does that square with Section 192, which requires a provider to treat content as illegal if it has reasonable grounds to infer illegality – and which specifically contemplates fully automated systems making illegality judgements?

Ofcom’s consultation does not spell out in terms what interpretations have been assumed for the purposes of the draft Codes of Practice, Guidance and other documents that Ofcom is required to produce. It is thus difficult to be sure how some aspects of the proposed recommended measures are intended to mesh with S.10(3)(b) of the Act.

This table lists out the questions of interpretation of S.10(3)(b). 

S.10(3)(b) duty

Interpretation question

Significance

“A duty to operate a service using proportionate systems and processes designed to … where the provider is alerted by a person to the presence of any illegal content, or becomes aware of it in any other way, swiftly take down such content.”

Does “becomes aware” mean that a human being has to be aware?

Some of Ofcom’s recommendations involve automated detection methods. Could the swift takedown duty kick in during automated detection, or does it apply only if the content is passed on to a human moderator?

Does “aware” mean the same as “reasonable grounds to infer” in S.192(5) and (6) (illegal content judgements)?

If the provider has reasonable grounds to infer that content is illegal, it must treat it as such (S.192(5)). Does that mean it must swiftly take it down under S.10(3)(b), or does “aware” set a different threshold?

 

If “aware” means the same as “reasonable grounds to infer” in S.192(5) and (6), is the answer to the ‘human being’ question affected by the fact that S.192 expressly contemplates that a judgement may be made by automated systems alone?

It is also noteworthy that the obligation under Section 66 to refer previously undetected and unreported CSEA content to the National Crime Agency is triggered by the provider becoming ‘aware’ of the content – again, not further defined. In the context of S.66, the Information Commissioner in its submission to the Ofcom Illegal Harms consultation observed: 

“Our reading of measure 4G is that it could allow for the content moderation technology to be configured in such a way that recognises that false positives will be reported to the NCA. Whilst we acknowledge that it may not be possible to completely eliminate false positives being reported, we are concerned that a margin for error could be routinely “factored into” a service’s systems and processes as a matter of course. This is unlikely to be compatible with a service taking all reasonable steps to ensure that the personal data it processes is not inaccurate.

We therefore consider that services should be explicitly required to take into account the importance of minimising false positives being reported to the NCA.”

Human awareness only? Consider a hypothetical Code of Practice measure that recommends automated detection and blocking of a particular kind of illegal user content. Can detection by an automated system constitute the service provider becoming aware of it, or (as an English court in McGrath v Dawkins, a case concerning the eCommerce Directive hosting shield, appears to have held) only if a human being is aware?

If the latter, then Ofcom's hypothetical recommendation will not interact with S.10(3)(b). If the former, then the possibility that the S.10(3)(b) removal obligation would be triggered during automated detection has to be factored in. The Ofcom consultation is silent on the point.

Awareness threshold Relatedly, what is the threshold for awareness of illegal content? S.10(3)(b) has similarities to the eCommerce Directive hosting liability shield. Eady J said of that provision: “In order to be able to characterise something as ‘unlawful’ a person would need to know something of the strength or weakness of available defences” (Bunt v Tilley). Has that standard been carried through to S.10(3)(b)? Or does the standard defined in S.192 OSA apply?

S.192 stipulates the approach to be taken where a system or process operated or used by a provider of a service for the purpose of compliance with duties under the Act involves a judgement by a provider about whether content is illegal content: 

"In making such judgements, the approach to be followed is whether a provider has reasonable grounds to infer that content is content of the kind in question (and a provider must treat content as content of the kind in question if reasonable grounds for that inference exist)."

In marked contrast to Eady J's interpretation of the ECommerce Directive hosting shield, S.192 goes on to say that the possibility of a defence is to be ignored unless the provider positively has reasonable grounds to infer that a defence may be successfully relied upon.

The OSA does not address the interaction between S.10(3)(b) and S.192 in terms, contenting itself with a cryptic cross-reference to S.192 in the definition of illegal content at S.59(16): 

"See also section 192 (providers' judgements about the status of content)".

The Ofcom consultation implicitly takes the position that awareness (at any rate by a human moderator — see Automated Illegal Content Judgements below) is synonymous with the S.192 standard: 

"When services make an illegal content judgement in relation to particular content and have reasonable grounds to infer that the content is illegal, the content must however be taken down" (Illegal Judgements Guidance Discussion, para 26.14)

Mixed automated-human illegal content judgements.

Returning to our hypothetical Code of Practice measure that recommends automated detection and blocking of a particular kind of illegal user content, such a system would appear to involve making a judgement about illegality for the purpose of S.192 regardless of whether a removal obligation under S.10(3)(b) is triggered.

If an automated detection system flags up posts for subsequent human review, the final word on illegality rests with human moderators. Does that mean that their judgement alone constitutes the illegality judgement for the purpose of S.192? Or is the initial automated triage also part of the illegality judgment? S.192 contemplates that ‘a judgement’ may be made by means of ‘automated systems or processes together with human moderators’. That may suggest that a combined judgement comprises the whole system or process.

If so, does that imply that the initial automated detection, being part of the illegal content judgement process, could not apply a higher threshold than the ‘reasonable grounds to infer’ test stipulated by S.192?

That question assumes (as does S.192 itself) that it is possible to embed within any given technology an inference threshold articulated in those terms; which brings us to our next topic.

Automated illegal content judgements One of the most perplexing aspects of the OSA has always been how an automated system, operating in real time on limited available information, can make accurate judgements about illegality or apply the methodology laid down in S.192: such as determining whether it has reasonable grounds to make inferences about the existence of facts or the state of mind of users.

Undaunted, s.192 contemplates that illegality judgments may be fully automated: 

“... whether a judgement is made by human moderators, by means of automated systems or processes or by means of automated systems or processes together with human moderators."

The OSA requires Ofcom to provide Guidance to service providers about making illegality judgements. It has produced a draft document, running to 390 pages, setting out how the S.192 criteria should be applied to every priority offence and a few non-priority offences.

Ofcom's draft Guidance appears to assume that illegality judgements will be made by human moderators (and implicitly to equate awareness under S.10(3)(b) with reasonable grounds to infer under s.192): 

"The process of making an illegal content judgement, as set out in the Illegal Content Judgement Guidance, presupposes that the content in question has been brought to the attention of a moderator making such a judgement, and as a result [the S.10(3)(b) awareness] requirement is fulfilled." (Illegal Judgements Guidance Discussion, para 26.14 fn 5)

Human involvement may be a reasonable assumption where decisions are reactive.  However, Ofcom has included in its draft Codes of Practice proactive prevention recommendations that are either automated or at least encompass the possibility of fully automated blocking or removal.

Annex 15 to the consultation discusses the design of various kinds of automated detection, but does not address the possibility that any of them involves making an illegal content judgement covered by S.192.

In apparent contrast with the human moderation assumed in the footnote quoted above, the Illegal Content Judgements Guidance also describes itself as 'technology-agnostic'.

“26.38 Our draft guidance therefore proposes a ‘technology-agnostic approach’ to reasonably available information and to illegal content judgements in general. We have set out which information we believe is reasonably available to a service, regardless of technology used to collect it, on an offence-by-offence basis. It is our understanding that, while automated tools could be used to collect more of this information or to do so more quickly, there is no additional class of information which automated tools could have access to that human moderators could not. We therefore take the view that information may be collected using any approach the service prefers, so long as when it is factored into an illegal content judgement, this is done in a way which allows a reasonable inference to be made.”

and: 

"A1.42 We have recommended three automated content technologies in our Codes of Practice; hashing technology recognising child sexual abuse material; URL detection technology recognising URLs which have previously been identified as hosting child sexual abuse material (CSAM); and search to detect content containing keywords strongly associated with the sale of stolen credentials (i.e. articles for use in fraud). These technologies do not offer an additional class of information that human moderators could not. We therefore take a 'technology-agnostic approach' to illegal content judgements."

The usual concern about reasonably available information, however, is not that automated content moderation technologies will have additional information available to them compared with human moderators, but that they will tend to have less. Moreover, they will be required to make decisions based on that information on the fly, in real time. Consequently such decisions are liable to be less accurate than those of human moderators, even if automated technology could be regarded as otherwise equivalent to a human being in its ability to make judgements.

The thinking may be that since the elements of a given offence, and the evidence required to establish reasonable grounds to infer, are in principle the same regardless of whether illegality judgements are made by automated systems or human beings, there is no need to differentiate between the two in the Guidance.

However, it seems artificial to suggest (if that is what is being said) that automated illegality judgements do not give rise at least to practical, and quite likely deeper, issues that differ from those raised by human judgements. The “technology-agnostic” label is not, in truth, a good description. The draft guidance may be agnostic, but if so the agnosticism is as to whether the judgment is made by a human being or by technology. That is a quite different matter. 

Ofcom’s automated moderation recommendations

This brings us to Ofcom's specific automated moderation recommendations. Do any of them involve making illegal content judgements to which S.192 would apply? For simplicity this discussion focuses on U2U service recommendations, omitting search engines.

To recap, Ofcom recommends three kinds of U2U automated detection and blocking or removal of illegal content (although for different categories of service in each case): 

• Perceptual hash matching against a database of known CSAM material (draft U2U Code of Practice, A4.23)

• URL matching against a list of known CSAM URLs (draft U2U Code of Practice, A4.37)

• Fuzzy keyword matching to detect articles for use in fraud (draft U2U Code of Practice, A4.45)

Each of these recommendations envisages that at least some moderation decisions will be taken without human involvement.

For CSAM perceptual hash matching the draft Code of Practice provides that the provider should ensure that human moderators are used to review "an appropriate proportion" of content detected as CSAM. The remainder, implicitly, would be swiftly taken down or blocked automatically in accordance with draft Code of Practice para A4.24, without human review. The draft CoP sets out how a service provider should go about deciding what proportion of detected content it is appropriate to review.

For CSAM URL matching the draft Code of Practice contains no provision for human review.

For fraud detection using fuzzy keyword matching the draft U2U Code of Practice requires the provider to consider the detected content in accordance with its internal content policies. The consultation explains that: 

"… all large services and those that have assessed themselves as having a medium or high risk for any type of offence should set internal content policies which specify how content moderation systems and processes moderate content and resource them accordingly." [14.230] fn 254.

Such policies could include automatic takedown of detected items. Whilst Ofcom say that “we are not recommending that services take down all content detected by the technology' ([14.249]), such action is within the range of the recommended measure. 

"Implementations that substantially impact on freedom of expression, including the automatic take down of detected content, could be in accordance with the measure in our Code of Practice.” [14.283]

The reliance on internal moderation policies appears to be intended to provide services with discretion as to what steps to take with automatically detected content: 

"… whether or not such content were, incorrectly, subject to takedown would depend on the approach, to content moderation adopted by the service, rather than the content's detection by the keyword detection technology in and of itself." [14.284]

Whilst the draft Code of Practice provides for human review of a reasonable sample of detected content, that appears to be a periodic, after the event, review rather than part of the decision-making process.

Do any of these three recommended systems and processes involve a S.192 judgement "by the provider" as to whether the detected user content is illegal?

Even for URL matching, where the detection and removal or blocking process is entirely mechanistic, the answer is at least arguably yes. It would be quite odd if the fact that a provider is relying on a pre-verified third party list of URLs meant that the provider was not making an illegality judgement, given that the very purpose of the overall system or process is to distinguish between legal and illegal content.

The same argument applies to perceptual hashing, but more strongly since there is an element of judgement involved in the technical detection process as well as in compiling the list or database.

The fuzzy keyword fraud detection recommendation is more obviously about making judgements. The draft Code of Practice recommends that fuzzy keyword technology should be used to assess whether content is 'likely' to amount to an offence (although elsewhere in the Consultation Ofcom uses the phrase 'reason to suspect'). If so, an item of content would then be considered in accordance with the provider's internal policies.

Where in the process an illegality judgement is being made could vary depending on the provider's policy. If detected content is submitted for human review, then it may be plausible to say that the illegality judgement is being made by the human moderator, who should make the decision in accordance with the 'reasonable grounds to infer' approach set out in S.192 and any relevant data protection considerations.

Alternatively, and as already discussed perhaps more in keeping with the language of S.192, the sequential automated and human elements of the process could be seen as all forming part of one illegality judgement. If so, then we could ask how Ofcom’s suggested ‘likely’ standard for the initial automated detection element compares with S.192’s ‘reasonable grounds to infer’. If it sets a higher threshold, is the system or process compliant with S.192?

If detected content is not submitted for human review, the answer to where the illegality judgement is being made could depend on what processes ensue.  If takedown of detected content is automatic, that would suggest that the initial triage constituted the illegality judgement. If other technical processes are applied before final decision, then it may be the final process, or perhaps the overall combination, that constitutes the illegality judgement. Either way it is difficult to see why an illegality judgement is not being made and why the S.192 provisions would not apply.  

It must be at least arguable that where automatic removal of automatically detected user content is within the range of actions contemplated by a Code of Practice recommendation, an illegality judgement governed by S.192 is being made either at some point in the process, or that the process as a whole constitutes such a judgement.

Nevertheless, neither the draft Illegal Judgements Guidance nor the draft Codes of Practice address the potential interaction of S.192 (and perhaps S.10(3), depending on its interpretation) with automated illegality judgements.