Seeking to regulate away all harm is state overreach on a massive scale

Victoria Hewson

May 13, 2021

Yesterday marked “a milestone in the Government’s fight to make the internet safe”. The long awaited Online Safety Bill was published. The government is confident that it will “put an end to harmful practices”, so that “what is unacceptable offline will also be unacceptable online”.

If you think that governments legislating for “acceptability” of speech and getting digital giants to police it for them sounds a bit concerning, don’t worry, the government’s press release breezily assures us that it has included ‘measures’ that “remove the risk that online companies adopt restrictive measures or over-remove content in their efforts to meet their new online safety duties”.

So what’s in the Bill? The general idea is to introduce a duty of care onto providers of regulated services (broadly, search engines and platforms that enable user to user content sharing). The duty will be more onerous on large platforms, who will have to risk assess and operate systems and processes to eliminate both unlawful content (i.e. that constitutes a criminal offence) and content that is lawful but harmful (i.e. that could cause physical or psychological damage to someone but does not amount to criminal behaviour).

One concern is that because platforms face huge fines, and can even be blocked ‘Great Firewall of China-style’ if they fail to act accordingly, they will over-comply and remove content that is legal, and poses no material risk of harming anyone. The Bill implicitly accepts this because it includes specific exceptions for journalistic and ‘democratically important’ content – which would surely be unnecessary if only genuinely harmful and criminal content were at risk of censorship.

But perhaps a bigger concern is the very fact that the government has decided that it is its job to protect people from being subject to harms caused by entirely lawful activity. Not everything that is harmful or undesirable is illegal and for good reason. Seeking to regulate away all harm, and, essentially, legislate a certain idea of acceptable social exchange, is state overreach on a massive scale.

Indeed the scale is illustrated by the estimated costs of compliance for service providers, which, according to the government’s own impact assessment, run into the billions. Small change for Facebook and Google perhaps, but further entrenching their market positions and making it even harder for their future competitors is surely not what DCMS had in mind.

But what of the measures to protect free speech? Well, the Bill seems to outsource what used to be a government responsibility (to respect free expression under the law) onto the regulated service providers. Providers will need to have regard to rights of free expression when carrying out their obligations. This is already a weak duty but, worse, it will be up to the regulator Ofcom to produce a Code of Practice to tell them how to fulfil it. Ofcom is not known for its strong commitment to free speech, and it may have been better for Ofcom itself to have been made subject to stronger duties in this regard.

There is a long way to go before the Bill becomes law, but it enjoys strong support across Parliament, and if anything MPs will be looking to strengthen it. Supporters of free speech and small government will have their work cut out to mitigate its effects. 

Author

Written by Victoria Hewson

Victoria Hewson is a member of Lawyers for Britain.

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