For a government which spends so much political capital on decrying the attacks on free speech from the ‘woke’, a new law to stick a pin in the heart of free speech legislation seems a strange twist of fate. Yet that is what the draft online safety bill proposes to do, handing out extraordinary powers to regulators and Silicon Valley companies while it’s at it. What is intended as a new way of policing online hate will instead revoke century-old standards of legislation on freedom of expression and redefine the legal notions of ‘harmful’ speech online.
The bill’s motives may well be welcome: there is a gap in the law for rules over incitements to self-harm, and instances of racial hatred or incitements to violence easily go unnoticed. But in trying to solve these issues, the bill has opened up a whole new concept to freedom of speech, dressed up as a “Duty of Care”.
As the Index on Censorship organisation has argued, this is a notion better left in the realms of workplace security than the right to free expression. Until now, removing content online and punishing it has been the domain of the courts, which have the authority to decide what is harmful and illegal at the same time, and to determine the crucial difference between the two. Someone found guilty of producing illegal or dangerous content, such as incitements to violence, would be examined by the courts, but content seen to be damaging to some would have to be judged purely against the legislation, not the individual opinions of judges or juries.
What the new bill does is remove one of those conditions: no longer will content have to be illegal to be censored, merely deemed “harmful”. And this time it is not the legal process which gets to decide, but the Ofcom regulator. Rather than the impartiality of the judicial system, the right to free speech is in the hands of a notoriously-politicised quango. It is they who will get to decide what the hazy term “harmful” is to mean.
In practice, this means that something written online which is not illegal by law could still be removed because of the deemed “harm” it does.
Beyond physical damage, ideas of what psychological harm means are indefinite by their very nature. An accuser could use any of their opponents’ words to be deemed harmful, and it would only take the agreement of Ofcom for the censor’s red pen to be put to use.
But it is not only the regulator who gains power; the threat of fines will encourage social media giants to make sure they are ahead of the game, in removing the “harmful” material before the authorities get a hold of it. That’s where the definition of harm becomes yet more susceptible to the whims of the tech bosses rather than the judgements of the courts. It is the role of Parliament to decide the laws on freedom of expression, and of courts to uphold them. It is not the job of companies or quangos with interest to pursue and grudges to bear.
Despite attempting to further remove illegal and hateful content online, this bill only strengthens such perpetrators. In applying such a broad-brush approach to what is deemed censorable or not, the government will let those that the bill intends to eradicate cower under the cloak of free-speech martyrdom, while also giving free reign for the same removal of content which breaks no current law. Those removed for any transgression are, in essence, treated the same as those inciting to mob violence.
The law would provide an exemption, included in an effort to “protect journalism and democratic political debate”, which in fact merely shows the absurdity of the whole scheme. Journalists, and those writing on a “recognised news publisher” escape the remit of the bill, purely on the basis of the supposed merit of their platform. Imagine, then, that I write something deemed harmful in this article, and the law will protect me. If anyone dares to repeat it on social media, though, either the regulators or the money-makers will be out to shut them up.
Freedom of expression has been enshrined in British law since the abolition of press controls in the 1690s until the removal of the Lord Chamberlain’s censor in the 1960s. For a government headed by a self-proclaimed libertarian, Boris Johnson’s administration shows little sign of moving back on a measure amounting to the most draconian infringements of those liberties. It is concerning that the drafted proposal of his government has met with merely the outcry of devoted campaigners, rather than the anger of the opposition or much of the media.
Only a much more concerted campaign will manage to save us from the ever-growing power of those to whom such rights mean all too little.