The government’s Online Safety Bill is coming to look more and more like some ghastly juridical juggernaut: a vessel grimly unstoppable, even if no-one quite knows where it is heading or where they want it to go.
The latest changes to the Bill, announced this week, look very much like an attempt to make the best of a bad job. They leave untouched the provisions of the legislation aimed at safeguarding the young, but slightly relax it as regards others. The aim is the awkward one of placating three disparate constituencies: child protection activists, those desperate to be seen to be doing their bit to bridle Big Tech, and those who value free speech online. And they are a mixed bag.
The good news first. Anyone who likes free speech must rejoice at the government’s decision to finally drop ‘legal but harmful’. The provision encapsulated the idea that there should be some kinds of material not in itself illegal that the largest internet platforms – Twitter, YouTube and the like – should nevertheless be barred from sharing with adults. This scheme had nothing going for it. It was patronising. It was politically dangerous, since future governments of all complexions would have gained a pretty open-ended power to place material they disliked off-limits by ministerial fiat (think, for example, lockdown or vaccine scepticism, both of which could have been seen to be disinformation). And it would have led to super-cautious regulation by the tech giants themselves, who would undoubtedly have played safe and taken steps to remove anything that might spell trouble.
Its abandonment also put the opposition nicely on the spot. Labour spokeswoman Lucy Powell’s immediate but incautious reaction, that ‘replacing the prevention of harm with an emphasis on free speech undermines the very purpose of this Bill, and will embolden abusers, Covid deniers, hoaxers, who will feel encouraged to thrive online’ was a gift to the government. It neatly exposes Labour as a party which at bottom is deeply troubled by the idea of freedom of speech and much prefers technocrats to be able to filter what we are allowed to see.
The latest changes to the Online Safety Bill look very much like an attempt to make the best of a bad job
Having dropped its ‘legal but harmful’ proposals, the government also proposes a quid pro quo: while adults should be allowed to see harmful material, they should nevertheless be given the ability to block it if they want. Here we should be a bit more cautious. True, we remain free to choose. On the other hand the whole thing seems rather unnecessary, since if we don’t like what we see on a platform we can always move on to another page. Nevertheless, if this concession helps ease through the proposal to remove the ‘legal but harmful’ bar, it is something those with liberal views on free speech can probably live with.
So too with the government’s second idea: the creation of a new offence of deliberately encouraging of assisting self-harm. This is clearly an acknowledgment of the original inspiration of the Bill, which was the need to prevent a repetition of the suicide of a teenager who saw such material online. Frankly, it is difficult to see many cases in which people promoting it deserve much sympathy, or much of an argument against criminalisation (which already exists in the parallel case of suicide).
Now for the bad news. At present a big threat to free speech online is not Big Tech at all, but the prohibition in the Communications Act 2003 on placing any material on the internet that is ‘grossly offensive’. It’s a disconcerting piece of law that can cover almost anything. Its victims have included YouTuber Count Dankula, fined heavily by a humourless Scottish sheriff for a video of a dog doing a Nazi salute. More recently, Joseph Kelly from Glasgow, given 150 hours of community service for a silly Twitter post welcoming the death of Sir Tom Moore.
The ill-effects of this catch-all provision go much further too, since it allows over-zealous police to threaten almost anyone with prosecution, arrest and seizure of computer equipment if they post anything that annoys someone else. Witness Caroline Farrow, a journalist seriously threatened with a criminal record for misgendering a trans activist, and Kate Scottow, arrested and actually prosecuted, though ultimately acquitted, for much the same thing.
Even the Law Commission, not a body well-known for its support for free speech, has called for this awful provision to be repealed and supplanted by a much narrower prohibition limited to material intended to cause psychological or physical harm. As drafted, the Online Safety Bill would have done just that.
Unfortunately, the government has now apparently quietly backtracked, and said it wishes to leave the old law intact. Why? The reason is not clear. Supposedly the aim is to protect victims of abuse. Nevertheless, the actual effect of the law is, if anything, to promote abuse by encouraging anyone offended by what they see online to run to the police and ask them to make life awkward for the person posting it. There may also have been more or less informal representations from prosecutors and others who found it a convenient way to silence those who stepped out of line – but this is speculation.
In any case, this is a change that needs to be widely publicised and resolutely opposed, both in Parliament and outside it. If the Labour party have shown themselves unhappy with free speech, we can at least now call on the government to do what is right, stand firm against the opposition and show its clear support for our right to say and read what we like.
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