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.