We can't crowdsource the right to free speech

The BBFC's plan to put content flags on online video could work – but crowd-sourcing censorship isn't the right way to do it.

The debate over protecting children from unsuitable web content has given rise to a novel proposal for content to be rated by users, with the resulting votes going to determine the suitability of the content. Plans are reported to be underway for a traffic light age rating system for user generated videos, on which the British Board of Film Classification and its Dutch equivalent are working with service providers and government. How this will work in practice has not yet been announced but dangers for freedom of expression lurk in relying too heavily on the wisdom of the crowd.

The timing suggests that the idea may be related to the Prime Minster's proposal that households should be able to control their access to adult content online by switching on a simple filter. One of the criticisms levelled at filtering is that to be effective it will have to be a relatively blunt instrument and block both the inoffensive and the inappropriate, with a potential impact on freedom of expression. Crowd-sourced age rating of content is at first sight both appealingly simple and potentially better, allowing greater discernment between content which really is adult and that which a machine might consider so. Red, amber and green ratings will reportedly be arrived at through a combination of the rating applied by the work's contributor and how the audience reacts.

The web inevitably makes available some content which is unsuitable or inappropriate for children to access. Some of this will be illegal, but much more will not, or may be suitable say for over 13s or over 16s only. A traffic light system may therefore struggle to distinguish between these and runs the risk of imposing the strictest warning on masses of content by default.

A greater concern however, is how the new system will guard against becoming a tool to enable prejudices of one kind or another to be played out. The system can only operate if it is the crowd's decision which counts - the reason this is even being considered is because there is too much content for a regulator or platform to consider. Relying on the crowd assumes that a collective consciousness emerges from the great mass of web users and their shared values, rather than a set of subjective reactions. This is a dangerous assumption. As a recent MIT study reported in Science suggests, the "wisdom" of the crowd may be a myth, its mentality more akin to that of a mob or herd. 

A huge amount of content which some viewers may be strongly, even violently, opposed to can be found online. However, such content may well not be illegal, or even be the sort of content that a body such as the BBFC would normally feel the need to apply adult age ratings to - religious teachings for example. Once crowd or mob has control, how will the system ensure it cannot be hijacked to serve the values of one interest group over another? Very few votes may be enough for any piece of video content to be tagged as unsuitable. 

Even then, merely adding a red traffic light rating to a piece of content may not by itself do much harm. But what if the ratings are not a simple visual warning but information which determines whether that piece of content is made available or not?

In controlling what content is made available, European governments' room for manoeuvre is limited. EU law enshrines protection for freedom of expression. Where Member States take measures which affect users' access to and use of services and applications over electronic networks, they have to respect fundamental human rights and freedoms. Any restrictions need to satisfy tests of being appropriate, proportionate and necessary in a democratic society. Determining the suitability of content has, until now, been the preserve of carefully chosen, neutral regulators, applying a set of agreed principles. Would mandating a system of crowd-sourced suitability ratings from anonymous web users around the world satisfy these tests? Without being able to ensure that the system could not be hijacked, it may struggle to do so.

So, encouraging ISPs to take voluntary steps may assist governments in assuaging the most vocal demands for action, while avoiding a difficult debate over internet regulation. But any approved scheme will need safeguards over whether the traffic lights become the basis for automated blocking of content which a household or ISP can apply at the flick of a switch. Once an appealingly simple idea like this takes hold, it may not be readily dropped and may go on to have profound effects on what content is made available in the majority of households in this country.

The BBFC.

Mark Owen is a partner at international law firm Taylor Wessing. He writes here in a personal capacity.

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Hillary Clinton can take down the Donald Trump bogeyman - but she's up against the real thing

Donald Trump still has time to transform. 

Eight years later than hoped, Hillary Clinton finally ascended to the stage at the Democratic National Convention and accepted the nomination for President. 

Like her cheerleaders, the Obamas, she was strongest when addressing the invisible bogeyman - her rival for President, Donald Trump. 

Clinton looked the commander in chief when she dissed The Donald's claims to expertise on terrorism. 

Now Donald Trump says, and this is a quote, "I know more about ISIS than the generals do"

No, Donald, you don't.

He thinks that he knows more than our military because he claimed our armed forces are "a disaster."

Well, I've had the privilege to work closely with our troops and our veterans for many years.

Trump boasted that he alone could fix America. "Isn't he forgetting?" she asked:

Troops on the front lines. Police officers and fire fighters who run toward danger. Doctors and nurses who care for us. Teachers who change lives. Entrepreneurs who see possibilities in every problem.

Clinton's message was clear: I'm a team player. She praised supporters of her former rival for the nomination, Bernie Sanders, and concluded her takedown of Trump's ability as a fixer by declaring: "Americans don't say: 'I alone can fix it.' We say: 'We'll fix it together.'"

Being the opposite of Trump suits Clinton. As she acknowledged in her speech, she is not a natural public performer. But her cool, policy-packed speech served as a rebuke to Trump. She is most convincing when serious, and luckily that sets her apart from her rival. 

The Trump in the room with her at the convention was a boorish caricature, a man who describes women as pigs. "There is no other Donald Trump," she said. "This is it."

Clinton and her supporters are right to focus on personality. When it comes to the nuclear button, most fair-minded people on both left and right would prefer to give the decision to a rational, experienced character over one who enjoys a good explosion. 

But the fact is, outside of the convention arena, Trump still controls the narrative on Trump.

Trump has previously stated clearly his aim to "pivot" to the centre. He has declared that he can change "to anything I want to change to".  In his own speech, Trump forewent his usual diatribe for statistics about African-American children in poverty. He talked about embracing "crying mothers", "laid-off factory workers" and making sure "all of our kids are treated equally". His wife Melania opted for a speech so mainstream it was said to be borrowed from Michelle Obama. 

His personal attacks have also narrowed. Where once his Twitter feed was spattered with references to "lying Ted Cruz" and "little Marco Rubio", now the bile is focused on one person: "crooked Hillary Clinton". Just as Clinton defines herself against a caricature of him, so Trump is defining himself against one of her. 

Trump may not be able to maintain a more moderate image - at a press conference after his speech, he lashed out at his former rival, Ted Cruz. But if he can tone down his rhetoric until November, he will no longer be the bogeyman Clinton can shine so brilliantly against.