- The draft Online Safety Bill presents a significant threat to
freedom of speech, privacy and innovation.
- The Bill's inclusion of 'legal but harmful speech' risks
state-mandated automated censorship of lawful online speech.
- The draft legislation hands extraordinary discretion to the
Secretary of State and Ofcom to design 'codes of conduct' that
will define what content is deemed 'legal but harmful'.
- If the government is unwilling to fundamentally rewrite the
Bill, there is a clear need for serious, independent scrutiny
mechanisms to prevent regulatory and ministerial overreach.
- An Independent Reviewer of Online Safety Legislation,
modelled partly on the Independent Reviewer of Terrorism
legislation, could stand up for freedom of expression, privacy
and innovation, and act as a bulwark against future authoritarian
demands.
A new report, In
Harm’s Way: Why online safety legislation needs an Independent
Reviewer, published by the Institute of
Economic Affairs (IEA), argues that the draft Online Safety Bill
prioritises vague notions of 'safety' over freedom, privacy and
innovation – and would in practice require censorship of online
speech that would be lawful offline.
The inclusion of 'legal but harmful' speech in the Bill – along
with defining unlawful speech as any content that the platform
merely has 'reasonable grounds to believe' is unlawful – could
lead to a draconian clamp down on speech online. Further,
the duties to 'have regard' to freedom of expression and privacy
are far weaker than the 'safety' duties.
The draft legislation also threatens innovation and competition
within the UK digital economy. It imposes byzantine duties that
will inevitably be harder and more costly for startups and
smaller companies to comply with. This risks discouraging
companies from operating in the UK, which could limit access to
online services.
Authors Matthew Lesh and Mikolaj Barczentewicz
highlight the extraordinary discretion the Bill hands to the
Secretary of State and Ofcom to design 'codes of conduct' that
will define 'legal but harmful content'. This includes the power
to impose additional requirements such as age verification and
undermine end-end encryption. The regulator will also have
significant leeway to discriminate when it comes to types of
content and which platforms it targets.
If the Bill cannot be scrapped altogether, the authors
propose several institutional safeguards that could be
included in the legislation. Specifically, the paper makes the
case for the creation of a new position of the Independent
Reviewer of Online Safety Legislation, modelled partly on the
Independent Reviewer of Terrorism Legislation. If properly
empowered and resourced, it could stand up for freedom of
expression, privacy and innovation while acting as a bulwark
against future authoritarian demands.
The report suggests additional changes that policymakers could
make to improve the Bill, including to:
- Remove 'legal but harmful' content from the scope of content
included in the Online Safety Bill, and if not, narrowly define
'harm' in primary legislation.
- Mandate Ofcom to protect freedom expression in their
activities and provide independent appeal mechanisms against the
regulator's actions.
- Remove private messaging or age verification from scope of
legislation.
Matthew Lesh, report author and Head of Public Policy at
the Institute of Economic Affairs, said:
‘The draft Online Safety Bill represents a drastic threat to
freedom of expression. It will force companies to censor legal
speech while placing extraordinary regulatory burdens on
thousands of startups. Worryingly, ministers and Ofcom will have
unprecedented powers to decide what we are allowed to see
online.
‘If the government is unwilling to abandon the draconian
proposals, the least they can do is ensure proper scrutiny and
oversight. An independent reviewer – inspired by Independent
Reviewer of Terrorism Legislation – could provide an important
bulwark against regulatory overreach.’
Mikołaj Barczentewicz, report author and Senior Lecturer
in Law and Research Director of the Law and Technology Hub at the
University of Surrey, said:
“There is a need for effective and independent oversight of
the new online safety regime, because of the very real risks it
poses to the freedom of speech and to innovation.
We argue that the new office of the Independent
Reviewer of Online Safety Legislation will perform that job far
more effectively than a parliamentary committee.”
Toby Young, General Secretary of the Free Speech Union,
said:
“The Online Safety Bill poses a grave threat to free speech
and is in urgent need of revision. The IEA is right to call for a
strengthening of free speech protections – an independent
reviewer would help defend against state censorship."
Jim Killock, Executive Director of the Open Rights Group,
said:
“The Online Safety Bill is a fundamentally flawed approach to
regulating online content. This is a reasonable attempt to apply
increased scrutiny to deal with the consequences of a bad bill,
but the best way forward would be a complete rethink."
