Rishi Sunak and Liz Truss have both suggested that they would like to see changes to the Online Safety Bill (OSB). But neither has committed to changing the most worrying features of the bill – which pose a threat to free speech, privacy and competition. The next Prime Minister should reject calls for more regulation of online speech, and embrace a legislative agenda that defends free speech, protects privacy and encourages competition. That means abandoning the OSB in its entirety, not just amending it.
The OSB is an ambitious piece of legislation that aims to limit the spread of harmful material online by requiring search engines and social media platforms to identify and remove a wide range of content. It’s easy to see why MPs want to tackle revenge pornography, online harassment, cyberflashing, and extremist propaganda. One in five women in the UK have faced online abuse and harassment. Parents are understandably concerned about their young children watching online pornography or falling victim to cyberstalking and online bullying. And the spread of extremist political content worries lawmakers and members of the public who fear attacks inspired by those seen in Christchurch, New Zealand; Utøya, Norway; Pittsburgh, USA and others.
The OSB seeks to crack down on these social ills by requiring companies to monitor their platforms for a wide range of ‘priority illegal’ material, such as terrorism content, child sexual exploitation content, as well as content related to ‘revenge porn, hate crime, fraud, the sale of illegal drugs or weapons, the promotion or facilitation of suicide, people smuggling and sexual exploitation.’
But implementing the bill as written would have other serious consequences too. Perhaps its most controversial feature is the obligation imposed on the largest social media companies to limit access to ‘priority content that is harmful to adults’, which has come to be known as ‘legal but harmful’. The bill does not specify what such ‘priority content’ might be, but as Matthew Lesh and Victoria Hewson note in their paper for the Institute of Economic Affairs, a wide range of content could fall into this category. They write:
“The government intends to formally specify categories of ‘priority content that is harmful to adults’ in due course. Public statements indicate they are likely to include ‘misinformation and disinformation’, ‘misogynistic abuse’, abuse, harassment and material encouraging self-harm or eating disorders. Supporters of including ‘legal but harmful’ speech in the legislation have suggested it could extend to ‘Covid disinformation’ and ‘climate change denial’. In the same vein, Shadow Department for Culture, Media and Sport (DCMS) Secretary Lucy Powell has raised concerns that the Bill as it stands would allow ‘incels’ and ‘climate deniers’ to ‘slip through the net’”.
The OSB requirements are backed up with hefty fines. The bill would punish firms that do not comply with its provisions with fines of up to 10% of global annual turnover or £18 million (whichever is greater). When faced with such penalties, firms will inevitably err on the side of caution and take down more content than required by the bill.
But the OSB is a conservative’s nightmare on more fronts than just content moderation. The bill would put law-abiding citizens’ privacy at risk by requiring platforms to monitor user content in order to prevent users from accessing priority illegal content. OSB permits Ofcom to require platforms to use specific monitoring technology. These provisions pose a risk to those who use services that incorporate end-to-end encryption (E2EE) such as WhatsApp and Signal. E2EE prevents third parties (including the E2EE service provider) from reading user messages. Any obligation requiring platforms to monitor their users’ content would therefore risk weakening encryption.
Far from being exclusive to criminals, E2EE services are used across the world by journalists, dissidents, and survivors of domestic abuse and stalking who use E2EE to conceal their communications. Sex workers spoke out against the American EARN IT Act, which threatened to undermine E2EE in the United States, because it would put them at increased risk of social sanction, violence, and blackmail
In addition to posing a threat to privacy and legal speech, the OSB threatens to entrench market incumbents and hamper competition. The Government’s own impact assessment estimates that firms will have to pay £2.5 billion over ten years to comply with OSB’s requirements. These costs will result in a less competitive market where the ‘Big Tech’ giants such as Meta and Google dedicate teams of engineers and lawyers to OSB compliance while their competitors face additional start-up costs.
The OSB’s threats to free speech, privacy and competition warrant a full-scale rejection of the bill, not mere amendments and clarification. Unfortunately, it appears that both Sunak and Truss are not prepared to scrap the bill. This is a shame given that the OSB will result in harmful unintended consequences that will restrict the spread of legal online speech, put the privacy of law-abiding citizens at risk and make ‘Big Tech’ bigger.
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