By the time you read this the new draft of the Online Safety Bill should be on the DCMS website. I haven’t seen it yet, but I have a pretty good idea of what’s in it because I’m one of dozens who’ve been urging ministers and officials behind the scenes to strengthen the free speech protections in the bill. For those not up to speed, the aim of the bill (in the words of Nadine Dorries, the Secretary of State at DCMS) is ‘to make the UK the safest place in the world to be online’, i.e., turn the internet into a safe space.
The white paper that preceded the bill was a nightmare from a freedom-of-expression point of view. It put forward a plan to force social media companies such as Facebook, YouTube and Twitter to remove not just illegal material – which is fine, obviously – but ‘legal but harmful’ content as well. That meant these providers would be required to impose speech restrictions that go far beyond the law, although the white paper only gave examples of what this ‘legal but harmful’ content might look like (‘bullying, or offensive material’) without bothering to define it.
Given that Ofcom would be empowered to levy ‘significant fines’ on errant social media companies – 10 per cent of their ‘worldwide revenue’, according to the first draft of the bill – that would create a powerful incentive for them to remove anything that some hypothetical, ultra-sensitive person might find upsetting.
The good news is, the second draft of the bill won’t impose an obligation to remove ‘legal but harmful’ content, which had been reworded as ‘content having, or indirectly having, a significant adverse physical or psychological impact on an adult of ordinary sensibilities’. That’s gone, thank God, but we’re not out of the woods yet. Facebook, YouTube and the rest will still have a duty to remove ‘content that is harmful to adults’ and the bill will give Dorries the power to define exactly what falls under that heading in a statutory instrument. I’m not expecting her to show her hand this week, but my worry is she will resurrect the ‘legal but harmful’ provision via that backdoor – and even if she doesn’t, a future Labour secretary of state could.
That’s concerning, but there’s another, deeper problem. Many of my fellow free speech warriors see this bill as an attempt by po-faced Lord Chamberlain-types to rein in the libertarian excesses of the worldwide web – and Conservative MPs often frame it in this way, too, believing the public wants them to ‘get tough’ with out-of-control social media giants.
But the days when Twitter des-cribed itself as ‘the free speech wing of the free speech party’ are long gone. Facebook removed 26.9 million pieces of content for violating its ‘community standards’ on ‘hate speech’ in the last quarter of 2020, 17 times as many as the 1.6 million instances of ‘hate speech’ it deleted in the last quarter of 2017. The real problem with this bill is that it doesn’t do enough to check the already rampant censoriousness of Big Tech. Twitter is more like the authoritarian wing of the Democratic party.
The bill contains little to stop these companies pledging to remove scads of ‘legal but harmful’ content in their terms and conditions – as they do at present – save for some wishy-washy provisions about the need to ‘take into account’ freedom of expression when deciding whether to remove ‘content of democratic importance’ and ‘journalistic content’ and to ‘have regard’ for free speech. To understand how ineffective these clauses are likely to be, think of the different legal duties included in the bill as being like football teams. The duty to remove ‘content that is harmful to adults’ is Manchester City. The need to ‘take into account’ and ‘have regard’ for freedom of expression is Plymouth Argyle.
So what me and my lot have been lobbying for – so far, to no avail – is as follows. First, we’d like to see a free speech duty included in the bill whereby providers are legally obliged to take all reasonable steps to ensure that the right to freedom of expression is not unduly infringed by excessive measures taken to comply with the duties of care under the bill or the social media companies’ own terms and conditions. Second, a requirement for each provider to publish a policy setting out how it will comply with this free speech duty.
Failing this, we’d at least like the ‘have regard’ language to be beefed up to ‘have particular regard’. Still not Premier League, more like Reading FC. But better than Plymouth Argyle.