Index on Censorship has been tracking the Online Safety Bill and the precursor debate on ‘online harms’ for many years. It seems that finally, under the premiership of Liz Truss, there may be the prospect of sensible and workable regulation on how content is moderated online. It has been encouraging to hear the Prime Minister confirming at PMQs on 7 September 2022 that the Bill will be amended to better balance the trade offs on safety online and individual freedoms.
So how does the government move forward with one of its signature pieces of legislation in this Parliament?
Firstly, the Bill has benefitted from high level scrutiny in Parliament and in particular by the DCMS, Joint Select Committee and Lords’ Communications and Digital Committees. These bodies have carefully heard evidence from the tech industry, civil society, victims of abuse, academics, legal experts and others and produced detailed analyses that were ignored by the previous Secretary of State for DCMS, the fourth to be charged with the task of regulating online harms. It is time to listen to the detailed scrutiny that Parliament has undertaken.
Secondly, it is vitally important that the government legislates in a way that observes the principle of legality, namely that people, business and courts can apply the rules that Parliament sets with certainty. The common law has a long tradition of presuming the legislative intent of Parliament as contributing to existing bodies of law, including fundamental constitutional principles and rights . So far however, the Online Safety Bill has sought to invert the historic right of free speech online so that perceptions of subjective harm trump objective legality. Our legal analysis indicates that if the Bill is not amended with practicability in mind, free speech would be threatened by over removal of content and tech companies would likely leave the UK – diminishing our thriving digital economy/society. Efficacy and workability should be at the heart of this new legislation, not vague commitments to cure the ills of the internet.
Thirdly, the new Secretary of State has a promising track record on this issue given her work on the Higher Education (Freedom of Speech) Bill. Indeed her comments on the problems the Higher Education Bill was designed to resolve could equally be applied to the problems the Online Safety Bill will create: “the damage that the erosion of free speech causes goes well beyond the classroom. It hits our communities, where ngenuity and diversity of ideas have flowed from throughout our country’s history. It stifles creativity, where some of our greatest artists and composers have made their name challenging the accepted wisdom of the day. The implications for our economy and our public life are catastrophic.” The new Secretary of State for DCMS should apply the dictum that what is legal to say should be legal to type.
It is never too late for the government to listen and heed the extensive warnings to prevent bad regulation. In this briefing, we have highlighted the five key areas for decision-makers to consider in order to protect free speech for adults. These changes are not an attempt to ‘water down’ the Bill but to purposefully demarcate protections that are only appropriate for children as distinguished from adults:
1. Remove the ‘legal but harmful’ provision completely
2. Prevent the algorithmic censorship of lawful speech
3. Illegality should be decided by courts not corporates
4. Private communication and encryption need protection
5. Parliament should be sovereign
Download our new briefing on the Online Safety Bill here or read it below.
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