In response to a letter from Ian Murray of the Society of Editors, which raised concerns about potential impacts on press freedom, secretary of state Jeremy Wright responded stating that journalistic or editorial content will not be affected by the proposed regulatory framework.
However, the far-reaching proposals that aim to address unclearly defined “harms” include a legal duty of care and the possibility of large fines and potentially even personal criminal liability for senior managers. These create a strong incentive to restrict and remove content, which could include “harmful” journalistic content where it appears online. The white paper includes disinformation in its list of harms.
Index on Censorship head of advocacy Joy Hyvarinen said: “The proposed regulation to tackle online harms has not been thought through properly. Based on the proposals in the online harms white paper, press freedom impacts would be very difficult to avoid. Index urges the government to reconsider these proposals.”
[vc_row][vc_column][vc_column_text]Index on Censorship has raised strong concerns about the government’s focus on tackling unlawful and harmful online content, particularly since the publication of the Internet Safety Strategy Green Paper in 2017. In October 2018, Index published a joint statement with Global Partners Digital and Open Rights Group noting that any proposals that regulate content are likely to have a significant impact on the enjoyment and exercise of human rights online, particularly freedom of expression.
We have also met with officials from the Department for Digital, Culture, Media and Sport, as well as from the Home Office, to raise our thoughts and concerns.
With the publication of the Online Harms White Paper, we would like to reiterate our earlier points.
While we recognise the government’s desire to tackle unlawful content online, the proposals mooted in the white paper – including a new duty of care on social media platforms, a regulatory body, and even the fining and banning of social media platforms as a sanction – pose serious risks to freedom of expression online.
These risks could put the United Kingdom in breach of its obligations to respect and promote the right to freedom of expression and information as set out in Article 19 of the International Covenant on Civil and Political Rights and Article 10 of the European Convention on Human Rights, amongst other international treaties.
Social media platforms are a key means for tens of millions of individuals in the United Kingdom to search for, receive, share and impart information, ideas and opinions. The scope of the right to freedom of expression includes speech which may be offensive, shocking or disturbing. The proposed responses for tackling online safety may lead to disproportionate amounts of legal speech being curtailed, undermining the right to freedom of expression.
In particular, we raise the following concerns related to the white paper:
Lack of evidence base
The wide range of different harms which the government is seeking to tackle in this policy process require different, tailored responses. Measures proposed must be underpinned by strong evidence, both of the likely scale of the harm and the measures’ likely effectiveness. The evidence which formed the base of the Internet Safety Strategy Green Paper was highly variable in its quality. Any legislative or regulatory measures should be supported by clear and unambiguous evidence of their need and effectiveness.
Duty of care concerns/ problems with ‘harm’ definition
Index is concerned at the use of a duty of care regulatory approach. Although social media has often been compared the public square, the duty of care model is not an exact fit because this would introduce regulation – and restriction – of speech between individuals based on criteria that is far broader than current law. A failure to accurately define “harmful” content risks incorporating legal speech, including political expression, expressions of religious views, expressions of sexuality and gender, and expression advocating on behalf of minority groups.
Risks in linking liability/sanctions to platforms over third party content
While well-meaning, proposals such as these contain serious risks, such as requiring or incentivising wide-sweeping removal of lawful and innocuous content. The imposition of time limits for removal, heavy sanctions for non-compliance or incentives to use automated content moderation processes only heighten this risk, as has been evidenced by the approach taken in Germany via its Network Enforcement Act (or NetzDG), where there is evidence of the over-removal of lawful content.
Lack of sufficient protections for freedom of expression.
The obligation to protect users’ rights online that is included in the white paper gives insufficient weight to freedom of expression. A much clearer obligation to protect freedom of expression should guide development of future regulation.
In recognition of the UK’s commitment to the multistakeholder model of internet governance, we hope all relevant stakeholders, including civil society experts on digital rights and freedom of expression, will be fully engaged throughout the development of the Online Harms bill.
[vc_row][vc_column][vc_column_text]Index on Censorship is concerned that the government’s online harms white paper, due out on Monday, contains proposals that will restrict freedom of expression and limit access to information online.
According to leaked details, it will include a statutory duty of care, which will be enforced by a regulator. Ofcom is expected to take on the role of regulator to begin, with a new regulator established later. Online companies will need to comply with a code of practice. The regulator will be empowered to impose large fines and hold directors personally liable.
Index is particularly concerned about the duty of care. The concept is closely linked to the “precautionary principle”, which has been widely applied in the environmental field, where it means not waiting for full scientific certainty before taking action to prevent harm. This makes sense. However, applying the precautionary principle to freedom of expression runs a high risk of legitimising censorship, especially when combined with large fines. It creates a strong incentive for online platforms to restrict and remove content.
A wide definition of “online harms” would seriously damage freedom of expression. The Ofcom survey mentioned in the article above is quoted as finding that “45% of adult internet users had experienced some form of online harm”.
A closer look shows that the harms listed in the survey question included, for example, spam, targeted advertising and bad language. A significant proportion was rated as “moderately annoying”.
Joy Hyvarinen, head of advocacy, said: “The online harms white paper will set the direction for future internet regulation. Index is concerned that protecting freedom of expression is less important than the government wanting to be seen as ‘doing something’ in response to public pressure. Internet regulation needs a calm, evidence-based approach that safeguards freedom of expression rather than undermining it.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1554458465880-2f6a5b7d-bd9b-8″ taxonomies=”16927″][/vc_column][/vc_row]
[vc_row][vc_column][vc_single_image image=”103235″ img_size=”full”][vc_column_text]The Rt Hon Jeremy Wright QC MP
Secretary of State for Digital, Culture, Media and Sport
100 Parliament Street
London SW1A 2BQ
6 March 2019
Re: Online Harms White Paper
Dear Secretary of State,
We write to you as civil society organisations who work to promote human rights, both offline and online. As such, we are taking a keen interest in the government’s focus on tackling unlawful and harmful online content, particularly since the publication of the Internet Safety Strategy Green Paper in 2017. In October 2018, we published a joint statement noting that any proposals are likely to have a significant impact on the enjoyment and exercise of human rights online, particularly freedom of expression. We have also met with your officials from the Department for Digital, Culture, Media and Sport, as well as from the Home Office, to raise our thoughts and concerns. With the publication of the Online Harms White Paper imminent, we wanted to write to you personally. A number of our organisations wrote to you about this last summer, and your office kindly offered to meet us. We would be very keen to meet in person, if that offer is still open.
While we recognise and support the government’s legitimate desire to tackle unlawful and harmful content online, the proposals that have been mooted publicly by government ministers in recent months – including a new duty of care on social media platforms, a new regulatory body, and even the fining and banning of social media platforms as a sanction – have reinforced our initial concerns over the serious risks to freedom of expression online that could stem from the government’s proposals. These risks could put the United Kingdom in breach of its obligations to respect and promote the right to freedom of expression and information as set out in Article 19 of the International Covenant on Civil and Political Rights and Article 10 of the European Convention on Human Rights, amongst other international treaties.
Social media platforms are a key means for tens of millions of individuals in the United Kingdom to search for, receive, share and impart information, ideas and opinions. The scope of the right to freedom of expression includes speech which may be offensive, shocking or disturbing. There is a real risk that the currently mooted proposals may lead to disproportionate amounts of speech being curtailed, undermining the right to freedom of expression.
Given this risk, we believe that it is essential for human rights requirements and considerations to be at the heart of the policymaking process. We urge the government to take a ‘human rights by design’ approach towards all legislation, regulation and other measures ultimately proposed. In particular, we make the following specific recommendations:
First, the government must set out a clear evidence base in relation to any proposals put forward in the Online Harms White Paper. The wide range of different harms which the government is seeking to tackle in this policy process require different, tailored responses. Measures proposed must be underpinned by strong evidence, both of the likely scale of the harm and the measures’ likely effectiveness. The evidence which formed the base of the Internet Safety Strategy Green Paper was highly variable in its quality. Any legislative or regulatory measures proposed in the White Paper should be supported by clear and unambiguous evidence of their need and effectiveness.
Second, we urge the government to fully to consider non-legislative measures before opting for regulation in this field. Other potentially highly effective options such as increasing public awareness and digital literacy, a curriculum and resource focus on digital skills in schools, promoting “safety by design” amongst tech product designers and developers, and supporting existing initiatives being undertaken, should be set out in the Online Harms White Paper.
Third, greater transparency on the part of social media platforms and others involved in the moderation and removal of online content should be the starting point when it comes to any regulation being considered. Transparency should not simply focus on the raw number of pieces of content flagged and removed; it should instead more holistically require platforms to provide user-accessible information about the policies they have in place to respond to unlawful and harmful content, how those policies are implemented, reviewed and updated to respond to evolving situations and norms, and what company or industry-wide steps they have or are planning to improve these processes.
Fourth, we strongly caution against proposals which attach liability to platforms for third party content, such as a binding Code of Practice, a new ‘duty of care’ or a new regulatory body. While well-meaning, proposals such as these contain serious risks, such as requiring or incentivising wide-sweeping removal of lawful and innocuous content. The imposition of time limits for removal, heavy sanctions for non-compliance or incentives to use automated content moderation processes only heighten this risk, as has been evidenced by the approach taken in Germany via its Network Enforcement Act (or NetzDG), where there is evidence of the over-removal of lawful content.(1)
Fifth, we expect any legislative or regulatory proposals to contain explicit and unambiguous language on the importance of freedom of expression. It is vital that any legislative or regulatory scheme which seeks to limit speech explicitly references the human right to free expression so that this infuses how the scheme is implemented and enforced in practice. Such language should be set out both any legislation ultimately proposed, as well as any secondary legislation or regulatory guidance ultimately developed.
Sixth, in recognition of the UK’s commitment to the multistakeholder model of internet governance, we stress the importance for all relevant stakeholders, including civil society, to be fully engaged throughout the Online Harm White Paper’s consultation period, and able to participate in the design and implementation of any measures which are finally adopted.
We appreciate your consideration of these points and look forward to continuing our engagement with your department as the Online Harms White Paper is published and throughout the policy process.
Yours sincerely,[/vc_column_text][vc_row_inner][vc_column_inner width=”1/3″][vc_column_text]Charles Bradley
Executive Director
Global Partners Digital[/vc_column_text][/vc_column_inner][vc_column_inner width=”1/3″][vc_column_text]Jodie Ginsberg
Chief Executive
Index on Censorship[/vc_column_text][/vc_column_inner][vc_column_inner width=”1/3″][vc_column_text]Jim Killock
Executive Director
Open Rights Group[/vc_column_text][/vc_column_inner][/vc_row_inner][vc_column_text]
1. See, for example, Scott, M. and Delcker, J., “Free speech vs. censorship in Germany”, Politico, 14 January 2018, available at: https://www.politico.eu/article/germany-hate-speech-netzdg-facebook-youtube-google-twitter-free-speech, and Kinstler, L., “Germany’s Attempt to Fix Facebook Is Backfiring”, The Atlantic, 18 May 2018, available at: https://www.theatlantic.com/international/archive/2018/05/germany-facebook-afd/560435/.[/vc_column_text][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1551880941891-44b3d529-2ac3-9″ taxonomies=”16927, 4883″][/vc_column][/vc_row]
