Lords Committee Warn Online Safety Bill Threatens Free Speech

The House of Lords Communications and Digital Committee has today published the outcome of its recent inquiry into freedom of expression, which warns that the UK Government’s new Online Safety Bill (Online Harms) is a “threat to free speech” due to its clampdown on “legal but harmful” content and “would be ineffective.”

The Government’s bill aims to have Ofcom clampdown on “harmful” online content (e.g. hate speech, bullying, terrorism, conspiracy theories etc.), not least by imposing new rules and restrictions via internet content (websites and social media etc.) and / or access providers (broadband and mobile).

Some of this is definitely needed, as the current self-regulatory approach hasn’t worked as well as it perhaps could. Indeed, a lot of social media today seems to have become worryingly tolerant of hate speech (e.g. racism) and dangerous conspiracy theories (e.g. anti-vaxxers), which can do real harm. In some cases, politicians and celebrities have even helped to amplify such things.

But at the same time trying to regulate the common public expression of negative human thought, while also balancing that against complex issues of context (e.g. people joking about blowing up a city in a video game vs actual terrorists), satire, the right to cause offence, political speech and the risk from overzealous automated filtering systems is a nightmare (manually moderating all content on major platforms would be economically impossible).

Equally, it doesn’t help that the Government seem intent upon shopping the definition of what is “harmful” out to commercial companies to decide. Suffice to say that many people in the industry are concerned that, in practice, parts of the new bill may be unworkable in the real-world, at least not without causing significant problems (e.g. too many legitimate pieces of content being removed).

The Government have always been keen to stress that they want to keep people safe online (especially children) and that any changes must be made in a proportionate way, ensuring that freedom of expression is upheld and promoted online, and that the value of a free and independent press is preserved. In reality, achieving such balance is, again, incredibly difficult.

The Lords Inquiry

The committee does welcome the Online Safety Bill proposals to oblige digital platforms to remove illegal content and protect children from harm, but it also warns that the draft legislation is “flawed” in relation to keeping children off porn sites and says that platforms must ensure they do not over-remove content.

Instead, its report suggests that existing laws should be enforced properly and any serious harms not already illegal should be criminalised. Meanwhile, content which is legal but objectionable to some people should be addressed by regulating the design of platforms, digital citizenship education and competition regulation. The report says this would be more effective and better at protecting freedom of expression.

On top of that it says that platforms should “contribute to more resources” for the police to enforce the law effectively, including online harassment, death threats, incitement, stirring up hatred and extreme pornography on the basis that polluters should pay. It’s nice to see a report that recognises the need to go after the people who post such content, rather than just the websites hosting it.

Lord Gilbert of Panteg, Chair of the Committee, said:

“If the government believes that a type of content is sufficiently harmful, it should be criminalised.

We would expect this to include, for example, any of the vile racist abuse directed at members of the England football team which isn’t already illegal. It has no place in our society and the full force of the law must be brought down on the perpetrators urgently.

The right to speak your mind is the hallmark of a free society and a right long treasured in Britain but it isn’t an unfettered right.

The rights and preferences of individuals must be at the heart of a new, joined-up regulatory approach, bringing together competition policy, data, design, law enforcement and the protection of children.

Britain can be a world leader, setting standards to which other countries can aspire. We must get this right.

The benefits of freedom of expression online mustn’t be curtailed by companies such as Facebook and Google, too often guided by their commercial and political interests than the rights and wellbeing of their users.

People have little choice but to use these platforms because of the lack of competition. Tougher regulation is long overdue and the government must urgently give the Digital Markets Unit the powers it needs to end these companies’ stranglehold.”

The full report includes a mass of recommendations, many of which exhibit a useful degree of common sense. On the other hand, there are some areas, such as those that once again propose to force Google and Facebook to pay some publishers for some of the use of their content (i.e. protectionism for old newspapers), which still seems to go against the way the online world has always worked (this approach also hasn’t worked very well in other countries where it was tried via similar EU rules).

All of this comes on the same day as the new legislative process for the Draft Online Safety Bill begins. Members of both houses (parliament) have now been appointed to consider the bill, kicking off the important pre-legislative scrutiny process. They’ll definitely have their work cut out.