Molly Russell, aged 14, died in November 2017 from what a Coroner decided in 2022 was “an act of self-harm while suffering from depression and the negative effects of online content”.
Not only had Molly had access to online “material that may have influenced her in a negative way”; she had also been subject to algorithms that resulted in “binge periods of images, video clips and text, some of which were selected and provided without Molly requesting them”.
Nobody at all wants to see this tragic occurrence repeated. Clearly the situation called for a short Act of Parliament making it a criminal offence to display or allow to be displayed specified harmful content to children. A sensible jury could then decide on the question of guilt and an experienced judge determine a punishment in each case. That is how the criminal law operates.
Mrs May, Prime Minister at the time, was rightly determined to do something, but, when her White Paper on Online Harms appeared in April 2019, it, inevitably in our modern age, eschewed the prospect of a simple Act creating a criminal offence and instead proposed an “independent regulator”. Avast Bill subsequently appeared both to give the necessary powers to the regulator (in fact an existing regulator, Ofcom) and to set a detailed framework within which they are to “make the UK the safest place in the world to be online” (the menacingly oppressive boast of Ministers). This will be aimed at what adults see and say as well as at content accessed by children. And it will transfer to the large platforms the obligation of censoring material, which free speech defenders think they do too much of already and conservatives think they do with an intrinsic left-wing bias.
The Bill received its Second Reading in the House of Lords on 1st February. Some 60 peers spoke, nearly all in support of the Bill and most complaining only that it needed strengthening. The irony of the scene was well captured by the Green Party peer, Lady Bennett of Manor Castle: “I have serious questions about the capacity of this House to engage with this debate. Yes, we did well in getting online during lockdown, even if we sometimes caught a glimpse of the grandchildren or great-grandchildren pressing the buttons so that their elders could speak in the House…. we are looking to take control over what [that generation] are doing right now. I invite noble Lords to keep that in mind as this debate proceeds.” There was little sign that noble Lords did. In fact, the Liberal Democrat Lady Benjamin went so far as to defend her enthusiasm for cradle-to-grave censorship by declaring, “Childhood lasts a lifetime.”.
At an earlier stage, the Bill included a prohibition on material that was “legal but harmful”, a category so wide and undefined as to constitute a major threat to freedom of expression. That clause was removed by the Government in the face of objections, but the Bill remains dangerous on at least three fronts.
First, it follows a pattern of giving vast and unsupervised powers to an “independent” and therefore unaccountable regulator. We really need to question how our recent passion for regulation over law is compatible with democratic accountability.
Second, it is a major threat to free speech. Not only will Ofcom have broad powers of censorship, but the mechanisms for enforcing its rulings will be left in the first place to the large social media platforms, which will use algorithms of their own devising to censor their part of the internet. The Government says it wants to “strike the right balance” on freedom of speech, but there is no evidence of balance in the Bill, except a generic call for those involved to give weight to the right to freedom of expression.
Finally, there is a problem with the Government’s ambition: being “the safest place in the world to be online” would be a fine ambition for China, which has largely achieved it by cutting off the Chinese internet from the rest of the world and ruthlessly supervising what can be seen and said. But how can this be compatible with a free society, in which there must always be a place for risk?
Given the weight of opinion in the Lords and the fact that the Labour front-bench spokesman offered to be as helpful as possible in securing the Bill’s passage, there is little doubt that it will go through with few changes. But it shouldn’t and we will deeply regret it when we see it in operation.
Lord Moylan is a Conservative peer. He has been involved in London and national politics since the early 1990s, with responsibilities particularly in respect of transport, infrastructure and public realm. He chairs the House of Lords Built Environment Select Committee and is a member of the board of the Ebbsfleet Development Corporation.
He was educated at the Queen’s College Oxford, was President of the Oxford Union in 1978 and served in the Foreign and Commonwealth Office (principally in South Africa) before becoming an investment banker.