The Online Safety Bill: what the Government MUST do next

The Online Safety Bill, pre-legislative scrutiny and free speech; what the Government must do next

No piece of legislation has posed a greater threat to freedom of expression in living memory than the Online Safety Bill. The Bill is nothing short of an assault on the rights to free speech and privacy and would fundamentally reconfigure how expression is policed in the UK.

Accordingly, rights groups have monitored pre-legislative scrutiny of the Bill closely. This process concluded with a report from Parliament’s Joint Committee on the Online Safety Bill in December of last year. The report includes a host of recommendations which set out how the Committee believes the Bill should be improved. Below is an analysis of some of the most significant recommendations for freedom of expression. This includes the Committee’s recommendations which we believe the Government must adopt as they pull together a full Bill, as well as observations on areas that have been overlooked.

“Legal but harmful” speech

At the very heart of the threat that the Online Safety Bill poses to free speech is an obligation on online platforms to tackle so called “legal but harmful” content. Clause 11 of the draft Bill compels companies to address “harmful” content in their terms of use and apply these terms consistently. Online expression which could be harmful to adults is defined as that which could risk having a “a significant adverse physical or psychological impact on an adult of ordinary sensibilities” – intolerably broad terms. Worse still, the Bill gives the Secretary of State executive powers to designate specified categories of content that do not even have to meet this broad definition of “harm”, but which the platforms would also have to treat as “harmful” nonetheless.

The effect of this measure would be to cause platforms to significantly expand their already-censorious content policies. This means we will see much more censorship of lawful expression – except this time, it will be state-backed.

The “legal but harmful” provision has been lambasted by a range of civil society groups and it is the reason we call the Bill a censor’s charter. With this in mind, the most significant recommendation from the Joint Committee is the proposal to remove Clause 11 from the Bill.

We agree with the Committee’s recommendation to remove this Clause. In their report, the Committee clearly recognised many of the problems with this Clause as drafted and the likelihood that it would be challenged in the courts. However, we would urge against a replacement of any sorts which directly or indirectly targets lawful expression.

Executive speech control

Another theme of concern throughout the Bill is the amount of executive control it would hand to both this Government and successive governments in the future.

Given that the regulatory framework established by the Bill will have a major impact on the free flow of ideas and information online, it cannot be acceptable for this regime to be open to politicisation. As debates around the Bill have progressed, concerns about excessive executive control have been widely shared across the spectrum and recognised by the Carnegie Trust who created the blueprint of the legislation. Professors Lorna Woods and Will Perrin of the Trust have argued that a greater degree of separation between the new regulator (Ofcom) and the executive is needed if the UK is to meet its “international commitments on free speech”.

The Joint Committee also expressed concerns about the abundance of executive control and potential for politicisation. Most significantly, the Committee recommended scrapping the powers that the Bill would grant to the Secretary of State to modify Ofcom’s codes of practice and to formally give guidance to the regulator. This is welcome and must be acted on as the Government revise the Bill.

Appeals process

Strong redress mechanisms provide some safeguards against the arbitrary removal of online expression and the Committee’s recommendations to bring in minimum standards for platforms’ appeals processes is welcome. The Committee’s recommendations on user redress recognise the importance of giving individuals greater agency as they navigate online spaces. The introduction of an Ombudsman service to constitute a higher-level appellate body, particularly in instances where an individual’s free expression has been curtailed, would add an additional level of scrutiny to the regulation and should also be adopted by the Government.

But the Bill is still broken…

Although these recommendations are welcome, we believe there would remain an abundance of problems with the legislation without further radical modification from MPs and peers.

The Joint Committee recommended a slightly more “zoomed out” approach and argued that the Bill should more broadly cover “regulated content and activity”. This approach also considers platforms’ wider design rather than just prescribing content-specific obligations. However, this would still oblige platforms to act in a more censorious manner than they currently do, even if it is more indirect in its method. For example the Committee recommended that platforms mitigate the risks associated with allowing viral content in general, suggesting that the spread of online information should be slowed regardless of the content of the information in question.

Although a clear change in tack is recommended, the Committee still in effect endorse the notion that platforms should be deputised to act as privatised online law enforcement agencies compelling them to make judgements on the permissibility of controversial expression even where illegality might not be clear. While it is clear that there is more law enforcement bodies can do to keep people safe online, outsourcing policing to the platforms themselves will mark a significant and potentially hazardous departure from simply upholding the rule of law online.

Additionally, the Committee’s recommendations relating to the right to privacy are not only left wanting but are, in places, actively detrimental in safeguarding this fundamental right. The report recommended that platforms which allow online anonymity on their sites identify this as a specific risk in their obligatory risk assessments and take subsequent steps to mitigate such risks. The Committee even goes on to actively recommend the use of so called “technology notices” which could be used to compel companies to scan private, encrypted messages. This must be resisted. The ability to have private conversations is a freedom fundamental to liberal democracies and we believe that private messaging services should not fall within the scope of the Bill.

In order to protect the rights to freedom of expression and privacy, we also believe that the Government:

• Must move away from vague notions of “indirect harm”.
• Should not use the legislation to roll out invasive age-verification or ID for internet access.
• Should not introduce highly draconian measures such as blanket ISP blocking.

The Joint Committee’s report recognised that in many places the draft Online Safety Bill is poorly written and in others it is actively damaging to fundamental rights. The Committee’s recommendations alone will not fix this legislation, which risks doing serious damage to both free speech and privacy in the UK. However, taken on their own merits, recommendations to remove Clause 11 (“legal but harmful” content for adults), to guard against excessive executive control and create better redress mechanisms for citizens online are important and must be adopted by the Government as a minimum. The future of free speech, the free flow of information and the right to privacy will be seriously impacted by this Bill. At present the Government is getting it badly wrong.

Mark Johnson, Legal and Policy Officer.

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