DCMS SoS?
Liz Truss has been appointed the new Prime Minister of Great Britain and Northern Ireland.
In anticipation of her appointment, the Secretary of State for Digital, Culture, Media and Sport, Nadine Dorries, who has led the introduction in Parliament of the Online Safety Bill and the Data Protection and Digital Information Bill (Bill 0143 2022-23), tendered her resignation.
While there was media speculation that Penny Mordaunt MP would take over the role, Liz Truss has appointed Michelle Donelan to the role of Culture Secretary.
What do these appointments mean for the draft DCMS legislation currently progressing through the House of Commons?
Online Safety Bill (Bill 121 2022-23)
Consideration of the Online Safety Bill came to a halt on 13 July, shortly before the Report stage of the Bill in the House of Commons was due to conclude, with Government sources claiming that this was due to a lack of Parliamentary time as a result of Labour’s motion to hold a vote of no confidence in then Prime Minister Boris Johnson. Shortly thereafter, Conservative Party leadership candidate Kemi Badenoch MP declared that the Bill was “in no fit state to become law”.
During the course of the leadership campaign, Liz Truss broadly backed the Bill but stated “What I want to make sure the Online Safety Bill does is protect the under-18s from content that is damaging… where it’s about adults being able to speak freely, they absolutely should be, and it should be the same online as offline. That’s a really important principle, and I’ll make sure the Online Safety Bill does reflect that”.
In her letter of resignation, vocal Truss-supporter Nadine Dorries indicated that she had been offered the opportunity to continue in the role but had declined, but gave a parting shot commending the Bill to her successor, at least in so far as it relates to under 18s (and therefore chiming with Ms Truss’ comments), “When I arrived in the department the Online Safety Bill had been kicked into the long grass. We picked it up, we ran with it and I am proud that we have a Bill which will hold tech giants to account and protect the lives of millions of children and young people. The eyes of the world are on this Bill and we, the UK, are leading the way”.
While the new Secretary of State’s views on the Online Safety Bill are not on record, it’s notable that the Bill’s detractor Kemi Badenoch has been appointed to the Cabinet position of Secretary of State for International Trade and President of the Board of Trade.
At her first PMQs, in response to a question by Sir Jeremy Wright MP, the Prime Minister provided her assurance that the government “will be proceeding with the Online Safety Bill” while noting that “there are some issues that we need to deal with. What I want to make sure is that we protect the under 18s from harm but we also make sure free speech is allowed so there may be some tweaks required but certainly he is right that we need to protect people’s safety online”.
Prime Minister Liz Truss responds to Sir Jeremy Wright’s question regarding the government’s intentions for the progression of the Online Safety Bill at PMQs on 07 September 2022
We might therefore anticipate that the provisions of the Bill in its current form which impose obligations on ‘Category 1’ user to user services to conduct adults’ risk assessments and protect adults’ online safety in connection with ‘priority’ and ‘non-designated content that is harmful’ (clauses 12 and 13) could be the subject of further consideration by DCMS, with any consequential amendments.
Data Protection and Digital Information Bill (Bill 143 2022-23)
The Second Reading of the Data Protection and Digital Information Bill was not moved as scheduled on 05 September, with the Leader of the House of Commons explaining that this was “to allow Ministers to further consider this legislation”.
While only former Chancellor Rishi Sunak set out his policy on reform of data protection law during the course of the leadership campaign, Liz Truss did make an overarching commitment in relation to all EU-derived legislation that she would introduce a “sunset” within 15 months.
Again while the new Secretary of State is not on record in relation to her position on the data protection legislation, if the Prime Minister and her colleagues were minded to attempt a more aggressive departure from the GDPR than is currently proposed, they could revisit some of the more controversial proposals in the ‘Data: A New Direction’ consultation that were dropped by the previous government, such as the proposal to remove safeguards against decisions based solely on automated processing, re-introducing fees for data subject access requests and/or imposing a cost ceiling, increasing the threshold for data breach reporting or expansion of data sharing from the public to the private sector.
While adherence to the letter of the GDPR is not a pre-requisite for a finding of data adequacy by the European Commission, which eases transfers of personal data from the EEA to the UK, the Commission’s adequacy decision in respect of the UK was, uniquely, subject to a sunset clause and was explicitly stated to be based on the lack of divergence from the GDPR and “adherence to the European Convention of Human Rights and submission to the jurisdiction of the European Court of Human Rights”. Since both of these conditions could be undermined (although it is being reported that the Bill of Rights, like the Online Safety Bill and Data Protection & Digital Information Bill, is going to be delayed and subject to further review), a vindictive Commission could seek to use the opportunity to punish the UK and therefore implementation of the proposals would involve a calculated assessment that the Commission will recognise that the value of the free flow of data between the EEA and the UK has a greater value than any potential punishment can impose.