It has been a long journey to get this far. After five parliamentary inquiries, alleged election interference, decades of concern about kids online, and multiple suicides by victims of online hate, the government has recently published its Online Safety Bill. If passed, the legislation will force platforms to better protect us online.
But the Bill could fail. Leading Tory libertarian David Davis wants to draw the reforms into the culture wars. Davis, who has described the legislation as “catastrophic for free speech” has made common cause with the Index on Censorship campaign. As a committee of seasoned parliamentarians prepares to scrutinise the legislation, political forces of all hues are joining Davis to oppose the Bill.
Some pushback against new regulation is inevitable, but this online version of the free speech wargame plays out against a peculiar backdrop. Those targeted by the regulation—namely big tech platforms like Facebook and Google, which will face huge costs under the regime— may support it, whereas many of those it is designed to protect—the users of those platforms—are poised to cry foul.
The Bill is in part the result of a two-year campaign led by the Daily Telegraph and is seen in some quarters as newspaper revenge on social media platforms which have undercut the print market. Newspapers have clearly made some progress in their understanding of freedom of expression. Ironically the newspaper, which led a principled campaign against any form of press law during the Leveson Inquiry, argued that self-regulation would never be enough to repair ethics online. Only a law would do.
So here is that law: 141 clauses, five schedules, 133 pages. While the central idea—applying a “duty of care” to tech platforms—might sound like a minor tightening of ethics, the promise of the law is more ambitious. Its proponents hope that it will convert the Wild West of internet services into a managed prairie. Less raucous and unpredictable yes, but fewer gunslingers, circled wagons and hopefully fewer shot wounds.
The duty of care would apply mainly to the bigger platforms such as Facebook, Google, Apple and Microsoft, where users spend most of our time and data, but Twitter is in the sights of the new law too. If it is passed in its current form, these large search and social platforms will have new duties to conduct risk assessments, to design their services in ways that minimise harm (for example by asking for proof of age for adult services), and to take down content that is deemed “harmful” much more quickly.
This will include not only posts that meet the test for example of incitement or racism and are therefore illegal, but also content which is legal, but seen as harmful by the regulator and is in breach of the rules of a particular platform. And here is the kicker: if they fail to protect the public from either form of content, they could be fined. If they refuse to protect us after repeated warnings, executives could be held criminally liable.
Extending new controls on content that is not even illegal has set alarm bells ringing. The opponents of the Bill say this will lead to a chilling of free speech on a par with censorship in China. According to leading internet lawyer Graham Smith, “if the road to hell is paved with good intentions, this [Bill] is a motorway.” Index on Censorship says that the role of Ofcom and the exemptions for democratically important news content creates a “two-tier system that censors the masses and privileges the elites.” Index, like Davis, are worried about censorship of speech not only by the government, but by the tech companies themselves. A lot of these questions are legally and philosophically unresolved, which is why they will run and run.
Cynics can see the attraction of the regime to the likes of Facebook: if the cost of compliance is high enough, only the companies capable of making the investments necessary to comply will survive. Duties to reduce risk are toughest for the biggest players, precisely to encourage competition. But it is impossible to predict just how the framework will play out. What we might therefore be witnessing is the establishment of a regulated oligopoly.
The government is putting together a new approach to platform competition and establishing a Digital Markets Unit, which offers the prospect of tighter regulation in the public interest and some monitoring of the big platforms’ entrenched dominance. But all of this must be out in the open. If we are establishing a social compact in which these behemoths are granted long-term benefits in return for them serving the public interest, we need constant monitoring by competition and other authorities, and all regulators need a much deeper engagement with the public about what constitutes that public interest. Otherwise, the danger is that we create centres of unaccountable power that ultimately damage democracy.
The government has demonstrated that it is serious about accountability by appointing Damian Collins to the committee overseeing scrutiny of the legislation. The MP, who also chaired one of the more thorough and ambitious parliamentary committee Inquiries leading up to the legislation, will bring with him a determination—and an impressive list of global parliamentary contacts—to do the job.
The problem with the Online Safety Bill in its current form is that it fails to engage civil society and passes too much power to government and private actors. Only civil society can balance the twin threats of government and private capture, and it cannot do this unless parliament deliberately sets this as an objective, through inserting transparency and public involvement on the face of the Bill in the place of the dead hand of bureaucracy, the corruptible hold of the executive, and inscrutable, often foreign, private power. The joint scrutiny committee must urgently seek amendments to do so.
For those of us who have been watching regulation in this field over many years, this feels like the beginning of an endgame in which the structures and frameworks will be set in place for many years to come. The Online Safety Bill offers in principle the potential to direct accountability neither through government nor opaque private bodies, but directly to civil society. Parliament simply has to take the steps necessary to make it a reality, and not get sucked in to confected free speech wars as it goes about it.
