12 February 2020

The proposed online harms regime puts free speech in peril


The Soviet Union had multiple organisations responsible for censorship. The Goskomizdat sorted printed fiction and poetry. Goskino dealt with cinema. Gosteleradio oversaw radio and television.

Judging by its latest announcement, the Government wants the UK to make do with one super-censor, Ofcom, charged not only with supervising broadcast media, but also “making the internet a safer place”.

There is a lot of effort in the Government’s initial response to the Online Harms White Paper to claim freedom of expression will now be protected. We are told that the new rules will not “prevent adults from accessing or posting legal content” or ask sites to remove “specific pieces of legal content”.

But don’t be fooled, free speech is still in peril.

The Government has never said anything about directly preventing speech or removing specific speech. The approach is much more pernicious than that. The ‘Online Harms’ model relies on a regulator enforcing a ‘duty of care’ by developing guidelines that require companies to remove broad swaths of legal and illegal speech.

Yes, they won’t tell Facebook or Twitter to remove your specific post, they’ll just tell them to have policies that require the removal. In the Government’s words, the focus will be on “wider systems and processes”. After all, it’s much easier to outsource censorship than do it yourself.

In some welcome news, there will now be different expectations for illegal and legal content. But why in the world is the government seeking to involve itself in legal speech at all? Ofcom will have the power to regulate “conduct that is not illegal but has the potential to cause harm”.

The entire goal of the enterprise is flawed: it is simply not the Government’s role to prevent ‘potential harm’ caused by speech. This is campus snow flakery on steroids. In the White Paper this included undefined categories such as “trolling”, “hate speech,” “extremist content”, and “disinformation”. To make things even more confusing, we now don’t even know precisely which harms the regime will address. The Government’s focus may be on the worst illicit harms, but Ofcom will ultimately decide what to address.

If the Government are serious about the manifesto commitment to “champion freedom of expression” they would immediately rule out Ofcom having any role in regulating legal speech. Even this would not be enough – the existence of this regime focused on illegal speech will still encourage companies to censor substantial legal speech to avoid fines, executive jail time or a website block. Germany’s NetGZ law, which exclusively dealt with already illegal hate speech, has led to removal of comedic statuses and even an elected politician’s posts.

The Government has also committed to “measures to prevent children from accessing age-inappropriate or harmful content”. In other words, age verification for much of the internet. The much-dreaded Porn Laws could be making their comeback, but this time for every single website. This means that to visit the adult versions of YouTube, Facebook or Twitter you may need to buy a pass, enter your credit card or passport, or even scan your face.

The focus on broadly defined ‘harms’, combined with the commitment to “proportionate and risk based” regulation, will give Ofcom extraordinary discretion to decide who to target and what type of speech to censor. There are an infinite number of “harms” and hundreds of thousands of websites. What counts as harm is ultimately subjective and will be a windfall for lawyers. These are political decisions, to be made by empowered and unaccountable bureaucrats.

There are political costs to this course of action too – letting Ofcom decide what speech is and is not allowed on the internet could well come back to bite the Conservatives.

It is not difficult to imagine public campaigns on certain issues – such as alleged ‘hate speech’ about trans issues or ‘misinformation’ about a Brexit bus – leading to guidance to censor anyone who does not ascribe to the Notting Hill point of view. Further, a future Labour Government could pressure Ofcom to go after anyone who criticises their socialist mission. Once a regulator is established there is nothing to stop your political opponents using it for their advantage.

As well as threatening to tear apart the fabric of Britain as a free, democratic society, the proposed regime will make the UK a particularly unfriendly place for entrepreneurs and entrench the tech giants. Unlike Facebook or Google, small homegrown British internet companies simply do not have the time or resources to deal with regulatory inquisitions. A spate of new rules risks seriously undermining a sector that employs hundreds of thousands of people and contributes billions to the economy.

Meanwhile the established players will continue to prosper, to the detriment of consumers. That’s probably why Facebook has broadly welcomed new online regulations. Facebook Vice-President Nick Clegg is no doubt delighted at the prospect of creating barriers to entry for emerging competitors.

As currently conceived, this online harms regime puts Britain in the uncomfortable company of China, Saudi Arabia and Russia when it comes to internet censorship. It’s time to go back to the drawing board.

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Matthew Lesh is Head of Research at the Adam Smith Institute