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.