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18 February 2022

The censorious Online Safety Bill baffles liberal Tories

The government has the laughable aim of fixing all the problems of the internet in one fell swoop.

By James Ball

Nadine Dorries and Priti Patel want to fix the internet. It certainly needs fixing — no one who has spent more than five minutes online in the last few years could have missed the problems of misinformation, radicalisation, abuse and electoral interference.

The internet enables more serious crimes, too: despite Kwasi Kwarteng’s protestations earlier this month that online fraud isn’t a “day-to-day” crime, it devastates the finances and lives of thousands of Brits every year. The internet also enables the illegal drugs trade and the distribution of images of child sexual exploitation.

It should come as no surprise, then, that the government is seeking to pass its Online Safety Bill. We should, at an absolute minimum, expect the same rights and protection online as we do in the offline world. Given the current global backlash against Big Tech, there are very few people indeed who would say that governments should do absolutely nothing to regulate the internet.

But the Online Safety Bill is a curious beast. It is a grab bag of policies, some of which have now outlasted multiple prime ministers. It includes a requirement for age verification for pornographic content, first passed under David Cameron, then introduced (and quietly shelved) under Theresa May, and now coming back to parliament under Boris Johnson.

Much else within the bill is leftovers from what was known under May as the Online Harms Bill, a key piece of legislation that fell by the wayside as her administration battled in vain to manage the Brexit process. As a result, the bill is a very strange one for Johnson to be passing. Age verification for pornographic content is the type of nanny state intervention more reminiscent of New Labour than a Johnsonian liberal.

That a policy as apparently popular as this one has taken more than seven years to be enacted should sound warning bells, but it seems they haven’t been heard. For a start, underage teens who actively want to access pornographic content will not be much held up by rules mandating adult websites to verify users’ ID — they will find ways around requirements online just as they did offline, with fake IDs.

[See also: Porn has bigger problems than teenagers watching it]

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And internet users won’t just need to verify their ID to access hardcore pornography websites — the new version of the law is much broader. Most people don’t associate Twitter, for example, with adult content but the site does allow people to post pornographic videos, so anyone in the UK accessing Twitter would need to verify their ID.

Age verification is, though, one of the least complex aspects of the legislation. Perhaps the most sweeping change is to create a “duty of care” between tech giants and their users. This would be a substantial requirement, meaning social media companies would have a duty — backed up with the threat of absolutely huge fines — to protect you from harmful content. This is something few businesses offline have to content with. A supermarket, for example, must make sure its stores uphold health and safety regulations, its food is stored safely, and so on, but it doesn’t have a duty of care to warn you you’re eating too few vegetables.

At present, social platforms are required to remove content that is in breach of the law: if it directs hate at protected groups or contains threats, for example. These new measures would make enforcement of those requirements more proactive, but would also compel tech companies to filter out “legal but harmful” speech. The nature of the legislation is that there is no penalty for social networks against being more censorious, but stringent penalties if they are found not to have removed this kind of content.

The result of such penalties could be what is known as over-moderation. It may quickly become impossible to say some things online that are perfectly legal and possible to say offline. Given that campaign groups and social media are good at mobilising and weaponising such rules, we could quickly expect accusations of “harmful” speech against all manner of contentious debates.

As some from the Conservatives’ more libertarian wing ruefully note, the government is legislating to strengthen free speech on campus as a flagship “culture war” policy while simultaneously acting to ban those same students from saying the same thing online.

[See also: In trying to tackle fake news, Facebook is cracking down on real science]

The law doesn’t just affect tech companies, either. One offence introduced in the bill criminalises online speech created with the intent to do harm without a reasonable excuse. It is intended to carry up to two years in prison as a maximum sentence, despite its vague and broad criteria.

The bill has baffled many within the Conservative Party. Liberals within the party have long regarded Johnson as one of their own, but are left somewhat aghast at his actual political record, even leaving the issue of coronavirus restrictions aside. Johnson was the mayor of London who banned alcohol on the Tube, the prime minister restricting obesity adverts on television, and now the prime minister to introduce digital ID cards to restrict access to pornography.

“For a government committed to a ‘war on woke’, why are they pushing the most censorious legislation in living memory?” wonders Daniel Pryor of the Adam Smith Institute, the neoliberal think tank. “The Online Safety Bill is a censor’s charter that would give the easily offended the ability to bully content off the internet.”

Conservative libertarians had been hoping that No 10 would remove some of the more restrictive elements of the legislation as it passed through parliament, with Johnson’s policy chief, Munira Mirza, the main focus of such hopes. With her departure, they fear a poorly thought-through bill that few of its champions really understand will pass without challenge.

The long tenure of many clauses of the bill is revealing. It has passed through multiple prime ministers, home secretaries and culture secretaries for a good reason: the civil service, especially those within the Home Office, want to introduce clearer regulations online. The British security establishment has long wanted tech companies to take more action against encryption, which damages the ability of spy agencies to do bulk data collection and analysis. Legislation helps to provide leverage for that kind of co-operation, even if it does not itself directly allow the access they would like.

Even outspoken critics of Big Tech are sceptical of the legislation in its current form. The Facebook whistleblower Frances Haugen wasn’t an advocate when she gave evidence to parliament and scrutiny committees made multiple recommendations to curb overreach — all of which seem to have been ignored and superseded.

Trying to unilaterally take the lead on fixing the global internet risks being something of a fool’s errand. The wiser solution probably lies in not trying to do everything at once. The Online Safety Bill attempts to fix the internet in one fell swoop, which should be seen as just as ridiculous as trying to fix the offline world with one piece of legislation.

Rather than trying to do everything all at once, and then struggling to deal with the fallout, we might find more success trying to fix one problem at a time. Otherwise, Dorries and Patel could find themselves passing a law that goes against all of their natural political instincts.

[See also: The Online Safety Bill has created a free speech culture war]

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