The good and bad news about the Online Safety Bill

14 December 2021

10:01 PM

14 December 2021

10:01 PM

If you care about free speech, the just-published report of the Joint Committee on the Online Safety Bill – a cross-party parliamentary committee composed of six MPs and six peers – is a mixed bag. This is the Bill which began life as a White Paper under Theresa May. Its aim? To make the UK the safest place in the world to go online. It will achieve this by subjecting social media platforms and internet search engines to state regulation, empowering Ofcom to impose swingeing fines on companies that fail to observe a new ‘duty of care’.

Let’s start with the good news. The Joint Committee recommends that the current protections in the Bill for journalistic content and ‘content of democratic importance’ should be replaced by protections for ‘content where there are reasonable grounds to believe it will be in the public interest’. This is much wider, and should give greater protection to ordinary users, not just journalists and politicians.

The report also proposes the creation of a new ombudsman that, among other things, would serve as a final court of appeal for people who feel aggrieved that they’ve had content removed by Twitter or Facebook, or been permanently banned. On the other hand, if it’s because they’ve been posting ‘misinformation’ about the Covid vaccines they’re unlikely to get very far. The Committee chastises social media companies for not doing enough to clamp down in this area. Yet given that Twitter’s latest ‘Covid-19 misleading information policy’, applies to those who share ‘false or misleading claims’ that ‘people who have received the vaccine can spread or shed the virus…to unvaccinated people’ this is cause for concern.

Perhaps the most eye-catching bit of good news is the section on online anonymity. The Joint Committee recognises that anonymity is a critical protection for some social media users – marginalised groups, victims of violence, whistle-blowers, children – and says it shouldn’t be banned outright provided social media companies are aware of users’ real identities and hand it over to the police when asked.

But the section of the report that excited me the most was the recommendation that the Law Commission’s recent proposals for a new ‘harms-based’ communications offence, replacing offences within the Communications Act 2003 and the Malicious Communications Act 1988, should be incorporated into the Bill.

On the face of it, that sounds like something a free speech campaigner should be up in arms about, not least because the new offence would enshrine the concept of ‘psychological harm’ in law and carry a maximum sentence of two years. And it’s true that the Law Commission’s recommendations have some significant shortcomings. But it’s worth bearing in mind that the existing communications offences are pretty restrictive; if the new offence defines ‘psychological harm’ narrowly enough, that could be a big win for the pro-free speech side. Why? Because the Joint Committee recommends that the definition of ‘psychological harm’ incorporated in this new criminal offence is the definition that should be used throughout the Bill.

If social media companies are going to be under a new legal duty to prevent ‘psychological harm’ befalling their users – which is one of the purposes of this Bill – it’s better that it should be defined in law and hopefully as narrowly as possible. An alternative is that it is left to the discretion of these companies, or indeed to Ofcom, all of which are vulnerable to being lobbied by political activists. In the original Online Harms White Paper, the suggestion was that Twitter and Facebook should be under a statutory obligation to remove content that’s ‘legal but harmful’, which would have meant the censorship of huge swathes of perfectly lawful speech.

But having come up with a sensible solution to this problem, the Joint Committee then adds a caveat that undermines it by recommending that social media companies should take steps to mitigate the harmful effect of posts that ‘may not necessarily meet the criminal thresholds’ of the new ‘harm-based’ communications offence (and some other new offences) ‘but which are based on the same criteria as those thresholds, indicating that society has recognised they are legitimate reasons to interfere with freedom of speech rights’.

What’s the point of giving a precise legal definition of ‘psychological harm’, and extending it across the Bill, if Twitter, Facebook and Ofcom can then use their discretion to decide whether content that isn’t unlawful under that definition should be removed anyway? The Committee has resurrected the concept of ‘legal but harmful’ in another guise.

Even more alarmingly, the report recommends the inclusion of another proposal by the Law Commission – this one published last week – which is to significantly extend the number of ‘protected’ groups you can be prosecuted for ‘stirring up’ hatred against. It also proposes the removal of the current safeguard whereby the Crown needs to show ‘intent’ to secure a prosecution. As I wrote in my Spectator column last week (‘Let’s not become Scotland’), the removal of that safeguard is something even Nicola Sturgeon hasn’t dared to do: it would have a significantly chilling effect on free speech.

In the same vein, the Joint Committee recommends that the definition of ‘harassment’ in the Equality Act 2010 – which has been invoked to no-platform gender critical feminists on the grounds that allowing them to defend sex-based women’s rights constitutes a form of ‘harassment’ against trans and non-binary people – should be incorporated into the Bill. From now on, according to the report, social media companies should have a statutory duty to prevent this form of ‘harassment’. That’s a terrifying prospect. We need to reform the Equality Act so it can’t be used to silence people with unfashionable opinions, not extend the reach of its most censorious clauses.

Conspicuous by its absence in this report is any sense that social media can be a huge amount of fun, providing people with hours of harmless entertainment. Rather, it’s the Wild West as envisaged by Sam Peckinpah – a perilous landscape in which malevolent outlaws lurk round ever corner. Perhaps if the authors spent a little more time on Twitter and Facebook, and less time being lobbied by people claiming to be speaking on behalf of victim groups, they might place a higher value on the free exchange of opinions and ideas.

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