LONDON (Parliament Politics Magazine) – This Online Safety Bill is a complicated piece of legislation that will have far-reaching effects on the regulation of the internet and in particular what people can and can’t say on large social media platforms like YouTube, Facebook and Twitter.
One of the most contentious parts of the Bill is section 13 which creates an obligation on in-scope providers to set out how they will address ‘priority harmful content’ in their Terms and Conditions. These priority harms will include a list of content that is ‘legal but harmful’ to adults. In a Written Ministerial Statement last July, we were told the list of ‘priority harmful content for adults’ in the supplementary legislation will include ‘online abuse and harassment’, ‘harmful health content’ and ‘health and vaccine misinformation and disinformation’.
There are numerous things wrong with encouraging social media companies to remove content that is ‘legal but harmful’. For one thing, concepts like ‘harassment’, ‘misinformation’ and ‘disinformation’ are so vague they lend themselves to being weaponised by defenders of prevailing orthodoxies to silence dissenters. For instance, the Free Speech Union recently went to bat for two gender critical law professors who were no-platformed by Essex University after trans rights activists complained to the authorities that allowing them to speak would constitute ‘harassment’ of trans students and staff.
More importantly, the attempt to ban ‘legal but harmful’ content from the internet flies in the face of one of the most fundamental principles of English Common Law, which is that unless something is explicitly prohibited by law then it is permitted. This is one of the touchstones of English liberty and I’m disappointed that a Conservative Government is trying to undermine it.
But section 13 is by far the only problematic clause in this Bill. Section 151 will create a new criminal offence – the Harmful Communications Offence – whereby it will be unlawful for a person to say something that intentionally causes either an individual or a group of people ‘psychological harm amounting to at least serious distress’. But like ‘harassment’ and ‘misinformation’, the concepts of ‘psychological harm’ and ‘serious distress’ are subjective and will inevitably be weaponised by activists and lobby groups to silence anyone who says something they find disagreeable. Or worse, try to get them locked up. Anyone found guilty of this offence can be sentenced to up to two years in jail.
There’s a further difficulty that the authors of the Bill appear to have overlooked. The definition of illegal content in section 52 says the content social media platforms will have a duty to remove in every part of the UK will be content that’s illegal in any part of the UK (‘offence means any offence under the law of any part of the United Kingdom’). That means that if a communication is illegal in, say, Scotland, even if it’s perfectly lawful in the rest of the United Kingdom, social media companies will have to remove it if it is brought to their attention. And by ‘have to’, I mean they can be fined up to 10% of their annual global turnover by Ofcom, the internet regulator If they fail to do so. In Facebook’s case, that would be $11.7 billion based on its revenue in 2021.
It’s one thing for the elected Government in Westminster to dictate what the British people are and aren’t allowed to say online. But what possible democratic argument is there for handing the Scottish Government that power over the rest of the United Kingdom? Do we really want to outsource content moderation for the whole of the United Kingdom to Nicola Sturgeon?
A further worry is the economic cost of complying with all the new regulations in the Bill. When this Government took us out of the European Union in 2019, it said Britain would be a more attractive place for people to set up new businesses because they wouldn’t have to deal with all the EU’s red tape. But after this Bill becomes law, the internet will be more heavily regulated in the UK than anywhere else in Europe and that will be a major disincentive for people thinking about setting up tech businesses here.
Faced with the exorbitant cost of complying with this forest of red tape, what tech entrepreneurs will want to establish new businesses in the United Kingdom? The Government has said its aim is to make Britain the safest place in the world to go online. What this Bill will in fact do is make Britain the most expensive place in the world to set up a business online.
In light of these concerns, as well as many others, this Bill needs a serious rethink. These issues need to be properly considered by Parliament. My preference would be to go back to the drawing board and think more carefully about how to make sure social media companies remove illegal content, such as child pornography, without breaching our right to freedom of expression or stifling public debate.
