The Legal Brief - 5th October 2023

In today's interconnected world, the internet has become an integral part of our daily lives. However, the vast landscape of the digital realm is not without its challenges. As the internet evolves, so do the risks associated with it. As such, the introduction and passage of the Online Safety Bill in the United Kingdom has marked a significant step towards achieving a safer online environment for users of all ages.

The Online Safety Bill

The Online Safety Bill is a substantial yet contentious piece of proposed legislation. The Bill aims to ensure a secure digital environment by holding tech companies accountable for the content on their platforms.

The primary objective of the Online Safety Bill is to combat harmful online content. This includes hate speech, terrorist propaganda, cyberbullying, and child exploitation. By doing so, it seeks to protect individuals, particularly vulnerable groups, from the detrimental consequences of exposure to such content. The bill holds social media platforms, search engines, and other online service providers accountable for the content on their platforms.

These companies are required to establish effective moderation systems and promptly remove illegal or harmful content. The bill places a strong emphasis on safeguarding children and young people online. It aims to prevent them from accessing harmful or age-inappropriate content and promotes the enforcement of age limits and age-checking measures. The bill also introduces new offenses, such as cyber-flashing and the sharing of "deepfake" pornography. This reflects a commitment to addressing evolving online threats and malicious activities.

One of the central components of the bill is the role of the regulator, Ofcom, which will be responsible for enforcing compliance with the new regulations. The regulator will have the authority to impose substantial fines on platforms that fail to meet safety standards. These fines can be as high as £18 million or a percentage of the company's global annual revenue, creating a strong financial incentive for compliance.

Striking a balance: digital protection vs freedom of expression

While the Online Safety Bill aims to create a safer online environment, it has faced criticism and controversy. Critics argue that it could infringe upon freedom of expression, as tech companies may play a significant role in determining what content is considered legal or illegal. Striking the right balance between online safety and freedom of expression remains a challenging aspect of this legislation. Despite its noble intentions, the bill's complexity also raises concerns that major tech companies might challenge certain aspects of it in court, potentially delaying its full implementation.

Supporters of the bill argue that it is a necessary step to prevent the kind of online harm and tragedy that individuals like Love Island presenter Caroline Flack or Georgia Harrison were subject to.

However, the bill has received mixed reactions from various stakeholders. While the NSPCC sees it as a historic moment that will result in much-needed protections for children, digital rights campaigners like the Open Rights Group express concerns about potential threats to freedom of expression. Tech companies like WhatsApp, Signal, and Wikipedia have also raised objections to certain provisions of the bill.

Once the bill receives royal assent, the responsibility for enforcing it will fall to the communications regulator, Ofcom. This regulator will develop codes of conduct that provide guidance on adhering to the new rules. Platforms that fail to comply with these rules could face significant fines, potentially amounting to millions or even billions of pounds.

Conclusion

In conclusion, the Online Safety Bill signifies a substantial stride towards enhancing online safety and accountability in the digital age. By targeting harmful content and enforcing responsible practices among tech companies, it aims to shield users from various online threats, particularly vulnerable groups like children and young adults. However, this legislation is not without its complexities and controversies, as it treads the fine line between safety and freedom of expression.

The delicate balance between safeguarding individuals from online harm and preserving the principles of free speech presents a formidable challenge. Critics argue that empowering tech companies and regulators to define and regulate online content might inadvertently stifle legitimate discourse and creativity. This concern underscores the need for careful implementation and continuous evaluation of the bill's impact on the digital landscape.

As the Online Safety Bill transitions from legislation to practical implementation, its actual effectiveness will become more apparent. As such, the bill marks a critical juncture in the ongoing narrative of online regulation, where the pursuit of safety and the preservation of democratic values must find a sustainable equilibrium in the ever-evolving digital landscape.

 Written by Max Howard

In recent years, the issue of gender reform has become a prominent and contentious topic in many parts of the world, including the United Kingdom. In Scotland, the Scottish Government's Gender Reform Bill was introduced in 2020 and sought to reform the legal framework around gender recognition. The bill, passed by a majority vote of 86 to 39, aimed to simplify the process of changing one's legal gender by allowing individuals to self-declare their gender identity, removing the requirement for medical evidence and reducing the waiting period from two years to three months. It also proposed recognising non-binary individuals, granting them legal recognition for the first time in Scottish law. The bill also sought to grant 16- and 17-year-olds the ability to change their legal gender without requiring parental consent, representing a significant departure from the existing legal framework.

Proponents of the bill argued that these reforms would enhance the accessibility and inclusivity of the legal recognition process for transgender and non-binary individuals. They contended that these changes would align Scottish law with international human rights standards, championing a more equitable and just approach to gender recognition.

However, the debate over gender reform and recognition quickly became a point of contention within the broader United Kingdom. The controversy escalated when the UK government chose to intervene and block the progression of the Scottish Government's Gender Reform Bill. The mechanism employed for this intervention was Section 35 of the Scotland Act 1998, which grants the UK government the authority to withhold consent for devolved legislation.

At the heart of the dispute is the UK government's assertion that the Gender Reform Bill, by influencing gender recognition, has the potential to disrupt equality laws throughout the entirety of the United Kingdom. The central point of contention is whether the proposed reforms might infringe upon the Equality Act 2010, a statute that uniformly applies to Scotland, England, and Wales. Interestingly, the intervention marked the first time the UK government has utilised Section 35 to prevent a bill from receiving royal assent since the establishment of the devolved Scottish Parliament.

A Section 35 Order

In its simplest form, Section 35 permits the UK Government the authority to prevent a Bill, which has been approved by the Scottish Parliament, from progressing to the final stage of becoming law, which is royal assent. However, it's crucial to note that this power to intervene is not without constraints and can only be exercised under specific and limited circumstances.

The UK Government is legally empowered to intervene and prevent royal assent for a bill when a Secretary of State has "reasonable grounds” to believe it would be “incompatible with any international obligations or the interests of defence or national security." Additionally, the UK Government can take action if it perceives that a bill seeks to make alterations to the law concerning "reserved matters." In this situation, there must once again be "reasonable grounds" for the Secretary of State to believe that the proposed legislation would have "adverse effects on the operation of the law as it applies to reserved matters."

This means that a bill can be blocked if it is deemed to conflict with the existing policy of the UK Government regarding reserved matters, even if the proposed legislation falls within the legislative powers granted to the Scottish Parliament in Holyrood.

The Legal Battle: Westminster vs. Holyrood

The deployment of Section 35 of the Scotland Act 1998 has ignited a legal and constitutional standoff between the Scottish and UK governments.

The Scottish Government, represented by Lord Advocate Dorothy Bain, asserts that the UK Government's use of Section 35 to block the Gender Reform Bill is legally unjustified. Their arguments hinge on several key points. Firstly, the Scottish Government argues that the Gender Reform Bill is well within the legislative remit of the Scottish Parliament. They contend that gender recognition, being a devolved matter, squarely falls under the authority of Scottish lawmakers. This stance frames the UK Government's intervention as an infringement on devolved powers and a challenge to the principle of devolution.

Furthermore, the Scottish Government insists that the bill is fully aligned with international human rights standards and is designed to promote greater equality by simplifying the gender recognition process. They assert that this legislation does not adversely impact reserved matters such as the 2010 Equality Act, which is consistently applied across the United Kingdom.

Crucially, the Lord Advocate Dorothy Bain contends that Scottish Secretary Alister Jack made "material errors of law" in his assessment of the bill. Specifically, the Scottish Government underline that the bill's modifications do not encroach upon reserved matters, as the changes primarily pertain to the gender recognition process itself, rather than altering the actual effect of the certificates issued. Likewise, the Scottish Government also underscores the legitimacy of legal divergence within the UK. They argue that variations in laws between Scotland and other UK regions are expected, given that gender recognition is a devolved matter. In this light, they challenge the UK Government's characterization of these divergences as problematic.

Conversely, the UK Government, represented by David Johnston KC, puts forth a robust argument to justify its utilisation of Section 35 to block the Gender Reform Bill. Their position centres around a range of concerns. Firstly, they emphasise the importance of Section 35 within the constitutional framework, highlighting that it forms an integral part of the distribution of powers. They assert that this provision authorises the UK Government to intervene when devolved bills have the potential to adversely affect the operation of reserved law and that this is essential to protect the interests of the United Kingdom.

The UK Government contends that maintaining a uniform approach to gender recognition across the UK is crucial. They argue that the existence of two distinct gender recognition systems—one in Scotland and another in the rest of the UK—presents inherent challenges. These include potential complications related to single-sex organisations, schools, and tax regulations. Additionally, they express concerns about the bill's proposed changes, particularly the transfer of gender recognition certificate applications to Scottish registrars, the elimination of the need for medical reports, and the reduction of the aquired gender requirement from two years to just a few months. According to their perspective, these changes could lead to negative consequences and risks, including the potential for fraudulent applications that might compromise safety in sex-segregated settings.

Conclusion

The legal standoff between the Scottish and UK Governments revolves around fundamentally different interpretations of the law and constitutional principles. The Scottish Government maintains that the Gender Reform Bill is well within its devolved powers and aligns with international human rights standards, while the UK Government asserts that Section 35 is essential to ensure uniformity and prevent adverse effects on reserved matters.

The standoff raises significant questions regarding the relationship between devolved administrations and the UK Government. The resolution of this dispute will carry significant implications for both Scotland and the broader constitutional framework within the United Kingdom. Should the Court of Session uphold the Scottish government's petition, it would signify a challenge to the UK government's authority to interfere in devolved matters. Conversely, a judgement in favour of the UK government would reaffirm the scope of Section 35 and its role in safeguarding reserved matters.

Regardless of the outcome, the intricate and contentious nature of this case suggests that it may not reach its conclusion within the Court of Session. An appeal to the Inner House of the Court of Session or even the UK Supreme Court in London could ensue, given the unprecedented use of Section 35 and the broader constitutional questions it raises. As such, it appears that the dispute over the Gender Reform Bill will serve as a litmus test for the balance of power between the UK government and devolved administrations. It underscores the evolving nature of the UK's constitutional framework in addressing complex issues such as gender recognition and equality, with potential ramifications for the entire United Kingdom. Ultimately, the legal resolution will shape the future landscape of governance and policymaking in the UK.

Written by Max Howard

This week, from Legally Speaking Podcast Host, Robert Hanna :

What are you doing to stay ahead in your legal career? 🚀

Exciting updates from the Legally Speaking Podcast ™️ powered by Clio - Cloud-Based Legal Technology!

This week, we're flipping the script on traditional legal hiring with Nicole Williams, Global Co-Head of Inclusion, Diversity, and Belonging at Ashurst.

Get ready for game-changing, evidence-based 'gamified testing'—it's not just about grades anymore!

🎮📆 LIMITED TIME: Catch us at Clio Con 2023 in Nashville next week! Exclusive interviews, content, and legal game-changers await you. PLUS, check out my parody video with none other than the awesome John Lindsey ahead of our visit! 😂

🌟 ALUMNI GUEST APPLAUSE 🌟

1️⃣ Colin Levy for his essential guide on the future of law, "The Legal Tech Ecosystem."

2️⃣ Mitch Jackson, Esq., who'll be the MC at the American Legal Technology Awards.

3️⃣ Flo Nicolas, Esq for her ground-breaking talk on people analytics at the Women in Tech Boston Conference.

4️⃣ Ranjit Sond for representing the SOCIETY OF ASIAN LAWYERS LIMITED at the Opening of the Legal Year.

5️⃣ Anusia Gillespie for her amazing work on ethical AI in law.

6️⃣ Lewis Alexander Baxter for recently hitting 10k followers on LinkedIn while serving as COO of Kurogo and we wish a belated happy birthday.

7️⃣ Carole Baskin for her transformative conservation initiatives at Big Cat Rescue.

🔥 YOUR NEXT MOVE?

Don't miss KC Partners latest handpicked legal vacancies—your dream legal career is just a click away! 📩

⏳ Time's ticking, don't miss out on these seismic shifts in the legal world!

👇 Dive in, level up your legal game 👇 #LegallySpeakingPodcast #Lawyers #LegalInnovation #Diversity #Careers---🌟

🌍 My mission? To foster a kind, collaborative, and vibrant legal community, propelling us forward into a successful legal creator economy. Let's shape the future, together.

Capital Markets Associate  - Global Law Firm  - London

Corporate M&A x 5  - Multinational Law Firm  - London

Corporate Real Estate  - Multinational Law Firm  - London

Corporate Solicitor x 2 - Multinational Law Firm  - London

Data protection Senior Associate/ Director ( x4 ) - Multinational Law Firm  - London

Employee Incentives Associate/Senior Associate - Multinational Law Firm  - London

International Privacy, Security and Information Senior Associate/Director - Global Law Firm  - London

IP Litigation Associate - Global Law Firm  - London

Real Estate Solicitor/Associate - Global Law Firm  - London

Tax Associate  - Multinational Law Firm  - London

Technology Associate/Senior Associate - Multinational Law Firm  - London

For further information, or to get your questions answered, please send a message to Robert Hanna.

If you cannot see a job suitable for you, but are interested to hear about more jobs at KC Partners, please send your CV to info@kcpartners.co.uk to be considered.

At KC Partners we are committed to promoting diversity and equality of opportunities across organisations and we welcome applications from suitable candidates regardless of race or racial group, religion or belief, age, disability, sexual orientation, sex, gender re-assignment and gender identity, marriage and civil partnership, and pregnancy, maternity and paternity.