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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I'd only given a literary talk, but someone still told me to leave the country

“So if you don’t like it so much,” he says, “why don’t you leave?” And his tone suggests that there is a good train leaving from St Pancras in half an hour.

So here I am at the Romanian Cultural Institute in Belgrave Square. Eventually. After a misunderstanding that finds me first, forlorn and bemused, at Olympia, with the London Book Fair closing down for the evening, watching my fee grow wings and fly away into the night air. I am called up and told where I could more profitably go instead – that is to say, the venue I should be at. On reassurance that my expenses will be met, I hop into a cab as soon as I find one (which, on Kensington High Street at 7pm, takes far longer than you would think. I will not use Uber).

I am going there in order to be on a panel that is talking about Benjamin Fondane (1898-1944), the Romanian intellectual, poet, essayist, philosopher and all-round dude. I know nothing about the guy beyond what I learned from reviewing a selection of his writings last July but this makes me, apparently, one of this country’s leading experts on him. Such is the level of intellectual curiosity in this part of the world. Fondane was treated much better in Paris, where he moved after finding studying law in Bucharest too boring; treated very much worse in 1944, when he was sent to Auschwitz.

A little corner of me is panicking a bit before the gig starts: I know next to nothing about the man, especially compared to my co-panellists, and I might betray this to the audience of around 80 (I refer to their number, not their age), sitting in their little gilt chairs, in a nice gilt drawing room, which is par for the course for European cultural institutes in this neck of the woods.

Another part of me says: “Don’t be silly, you’ll be fine,” and it turns out I am. I even manage to throw in a few jokes. During the course of one of my answers I say that the UK is a cultural desert and that there was a reason Fondane stopped moving when he got to Paris. The idea of coming to London to breathe the pure air of artistic freedom and inspiration was, and remains, laughable. It gets a chuckle or two out of the (mostly Mittel-European) audience, who like a bit of British self-deprecation as much as we do.

Or do we? Downstairs, and clutching my first glass of the evening (a perfectly drinkable Romanian Merlot), I chat to various people who come up and say they like my reviews etc, etc. All very pleasant. And then a man comes up to me, about my age, maybe a year or three younger, smartly tweeded.

“I was very offended by what you said about this country being a cultural desert,” he says. He is not joking.

“Oh?” I say. “Well, it is.”

He has the look of someone about to come up with a devastating argument.

“What about Shakespeare?” he asks me. “What about Oscar Wilde?”

“They’re dead,” I say, leaving aside the fact that Wilde was Irish, and that anywhere was better than Ireland in the 19th century for gay playwrights.

“So’s Fondane,” he says.

I think at this point I might have raised my glasses and massaged the bridge of my nose with finger and thumb, a sign for those who know me of extreme exasperation, and a precursor to verbal violence.

“So if you don’t like it so much,” he says, “why don’t you leave?” And his tone suggests that there is a good train leaving from St Pancras in half an hour.

“Do not presume to tell me, sir, whether I should leave the country.”

He tells me he has a Polish wife, as if that has any bearing on the matter. He says something else, which for the life of me I can’t remember, but I do know that when I replied to it, I used only one word, and that the word was “bollocks”.

“Well, if you’re going to use bad language . . .”

“I’ve got more,” I say, and proceed to launch a volley of it at him. Things have escalated quickly, I know, but there is no jest in his tone and what I am detecting is, I realise, his strong awareness of the Z in my name, my nose, and my flawless olive complexion. One develops antennae for this kind of thing, after almost half a century. And there’s a lot more of it about these days.

In the end, I become pretty much incoherent. On stage I’d caught myself thinking: “Golly, talking is even easier than writing;” but now my fluency deserts me. But God, it’s fun getting into a fight like this.

I’ve left my tobacco at home but the Romanian government gives me a whole pack of Marlboro Gold, and more wine. Vata-n libertate ori moarte! As they say. You can work it out. 

Nicholas Lezard is a literary critic for the Guardian and also writes for the Independent. He writes the Down and Out in London column for the New Statesman.

This article first appeared in the 23 March 2017 issue of the New Statesman, Trump's permanent revolution