Being safe has acquired new urgency over the last 18 months. Employers now have to take care of your safety, not only from dodgy wiring and backache-inducing desks, but from catching Covid-19. Universities take the student experience online in the name of their duty to keep staff and students safe from infection. Safety has become a sacred social value, so no wonder the Online Harms Bill has been rebranded as the Online Safety Bill, with an official UK government ambition for Britain to become “the safest place in the world to be online”.
The safety angle also fits with the importation of the “duty of care”, a legal idea more often applied to medical practice, health and safety at work, or a landlord ensuring your gas boiler is inspected every year than what you might come across online. The draft bill, presented to parliament at the end of May, seeks to impose on internet service providers a duty of care to protect users from harmful content, even when that content is legal and posted by another user.
Restrictions in the name of keeping us safe are popular right now, but this emphasis on safety comes at a cost. Some harmful online content is already illegal, especially if it relates to terrorism or child pornography, or constitutes a threat to somebody’s physical safety. The expansion of regulated content to include the notion of harm casts the legal net dangerously wide, while imposing a pre-emptive duty of care forces the providers of social media platforms or search engines to take a precautionary stance.
The new bill means it won’t be enough for platforms to remove content after it has been shown to cause harm. Instead, they must predict whether there are “reasonable grounds” to believe there is a “material risk” of content having “a significant adverse physical or psychological impact on an adult of ordinary sensibilities” – or on a particular adult, or member of a particular group, at whom the content is targeted.
The penalties for failure in this duty are high, including fines of up to 10 per cent of annual turnover. The penalties for being overzealous in blocking or removing content because it might represent a risk to the psychological wellbeing of a particular person or group are not specified.
Given that online forums are now the dominant public space for thrashing out political – and other – ideas, this would result in a chilling of free speech. In a world where one person’s reasonable opinion is often seen by another as a personal attack, self-censorship to avoid this kind of pre-emptive censorship would narrow the scope of public debate before a single word is typed.
There is an official impact assessment for the Online Safety Bill, in which “freedom of expression” gets half a page. In contrast with meticulous quantification of the harms from which the bill will protect us, including cyberbullying and hate crime, the two paragraphs devoted to freedom of expression say that the regulator will be given responsibility to protect freedom of expression (how, exactly, is not made clear), and argue that besides, businesses were already removing content anyway. The point that rules must be enforced “consistently and transparently” is repeated multiple times, but enforcement that is consistently and transparently heavy-handed is nonetheless a threat to free speech.
This very point has been made by the campaigning group Index On Censorship, which released a report on the Online Safety Bill spelling out how the duty of care model threatens free speech. It argues that if something is legal to say, it should be legal to type, and to post online.
Unfortunately, the freedom to say things in public can no longer be taken for granted either. And for all the government’s emphasis on championing free speech when it comes to other areas (like universities), efforts to limit public debate are underway.
Take the Police, Crime, Sentencing and Courts Bill gradually making its way through parliament. It gives the police powers to restrict or forbid a demonstration that “may cause” persons in the vicinity “to suffer serious unease, alarm or distress”.
Demonstrations are generally designed to convey to other people, especially those in power, that some citizens are not willing to accept the status quo or proposals to change it. It’s almost certain that demonstrations will provoke unease, at the very least, in those who disagree with the demonstrators’ points. What would be the point of a demonstration that made no impact on anybody? So while violent protest and damage to property is already illegal, the government’s bill would dramatically curtail the right to protest peacefully.
The heart of the problem with both the Policing Bill and the Online Safety Bill is the government’s tacit acceptance of a controversial but nonetheless growing view that words and ideas constitute harm, or at least the risk of harm. The increasing unwillingness to distinguish between words you don’t like and actions that can harm you makes it very difficult to argue against specific curtailments of free speech.
True, sometimes words alone can constitute an action: revealing private information such as a person’s address, for example. And some words do have foreseeable consequences that would predictably cause harm – that’s why making violent threats is already a crime. But most words have an impact on our minds, and our minds are not limbs that can bruise and break when hit with hard words and weighty arguments.
A world safe from challenging and unwelcome words and ideas is not a world safe for democracy. If we are not free to hear, read and debate the full range of ideas, we are not free to question the way things are, or the direction society is moving.
Don’t let the UK become the safest place in the world for the status quo to go unchallenged.