Explained

What’s between the lines?

While the Lords version of the ban pretty much just said “ban under-16s from social media”, the new amendment is far, far broader.

The surface difference is how equivocal it seems to be about ages and scope – lots of room for flexibility and nothing to fetter the regulations to something very black-and-white. Stopping the ban from being at service-level allows for a ton of ways to safeguard kids without a total restriction, and the scope can be drawn up from scratch around concerns specific to social media. All good, nice to have some nuance available.

However, instead of just “regulated user-to-user services,” the proposed regulations cover “specified internet services [and] specified features or functionalities of such services” –essentially ‘anything on the internet’.

Because the focus of the discussion so far has been social media, it’s easy to just think of ‘services, features, and functionalities’ as chat, media sharing, and internet forums, but “internet services” it covers SO much more. We could, therefore, see under-16s restricted from an array of services and tools, that aren’t currently covered by the Online Safety Act. The ongoing “Growing up in the online world” consultation mentions in-game purchasing (hellooooo, loot boxes) and ‘addictive’ design features (which is in itself a wide category) as potential targets for restriction, but it’s not a limitation.

How would the ban be made?

The powers in the amendment would let the government create ‘regulations’, also known as ‘secondary legislation’. It’s often used to put the fine detail into an Act, such as the mechanisms for enforcement.

This is much quicker than putting a Bill through the legislative process, largely because it goes straight to a vote without debates and committee stages. That means it can be kept up-to-date, changed if/when evidence requires, and amended if things aren’t working out. On the other hand, there’s less scrutiny and fewer opportunities for it to be changed.

Effectively, the government could decide to ban all children from whatever internet services they want to, or place strict ‘digital curfews’. We don’t expect them to do that at all, but the fact remains that these powers are available to them. Any regulations must be approved by both Houses, but if the government of the day has a majority in both, then this isn’t much of a barrier. Just because we don’t think the government here and now would do it, it doesn’t mean that it wouldn’t happen further down the line – something that the Lib Dems raised during the debate.

What happens next?

Amendments made by the Commons have to be approved by the Lords, so in due course it will go back over there for debate. Technically speaking, the Lords could reject the Commons amendment and substitute their own, but this isn’t likely. We could potentially see an effort for the scope to be narrowed, or for an ‘age ratings’ system to be put in by the Lib Dems, but it’s not super likely and could well be kicked back out in the Commons.

The Lords can’t really put their original ban back on the table because the government probably has the option to invoke ‘financial privilege’ – this means that, since the Lords ban would have required public spending, they cannot try to force it through.

Is the consultation still important?

Absolutely – even more so, given the potential range of services affected and the breadth of what could be restricted.

The consultation will inform the government’s approach to creating the regulations, so the more information they have, the better.

A major focus will be the scope of what’s restricted. The consultation specifically asks about what should be included/excluded from a social media ban, at both a service level anda features/risks level. As video games usually have user-to-user featuresrather than being social media in their own right, it’s critical that a service-level scope is ruled out. If carried out, games wouldn’t be able to allow 16-year-olds to play by removing their access to user-to-user features, as they would have to block them from the service as a whole.

The games industry mustbe clear about why user-to-user comms functions (such as in-game chat) is fundamentally different to ‘traditional’ social media, and (if such functions are kept in-scope) why it would be appropriate to allow children to have access to the game provided they are blocked from those functions.

Other parts of the consultation are about whether an age-based ban is necessary at all, or whether it’s disproportionate. There are plenty of children’s advocacy groups who are concerned about a ban, and we know the government have long opposed it. However, just because a full-on ban might not happen, it doesn’t mean that there wouldn’t be some restrictions on user-to-user functions.

What’s the best play?

The potential consequences for the video games sector could be huge, and the debate made clear that there will continue to be sustained pressure on the government to act on the issues raised during the Bill’s progress. Effective, proportionate regulation should recognise different contexts, which means industry needs to make this clear.

The best step for the industry is to establish a clear boundary between games and social media, between game functions and comms functions, and push for an approach that either excludes games from the ban or at least allows a delineation between service and function so that younger players can remain on the platform if they are barred from comms features.

The next several months will be key for the industry to engage in the discussion of the regulatory framework, with the current consultation a perfect opportunity to raise government awareness of the issues.