Institute of Economic Affairs (February 2022)
with Matthew Lesh
The draft Online Safety Bill presents a significant threat to freedom of speech, privacy and innovation. ‘Safety’ has been prioritised over freedom. The Bill’s proponents wrongly assume it is possible to remove ‘bad’ content without negatively impacting on the ‘good’ and that platforms, not users, are responsible for ‘harms’.
The Bill’s inclusion of ‘legal but harmful’ speech – along with defining unlawful speech as any content that the platform merely has ‘reasonable grounds to believe’ is unlawful – risks state-mandated automated censorship of lawful online speech. The duties to ‘have regard’ to freedom of expression and privacy are far weaker than the ‘safety’ duties.
The Bill threatens innovation and competition within the UK economy by imposing byzantine duties that will inevitably be harder and more costly for start-ups and smaller companies to comply with, while discouraging companies from operating in the UK, limiting access to online services.
The Bill provides extraordinary discretion to the Secretary of State and Ofcom to design ‘codes of conduct’ that will define ‘legal but harmful’ content. They will also have the power to impose additional requirements such as age verification and undermine end-to-end encryption. The regulator will also have significant leeway about what types of content and which platforms to target.
If the Government is unwilling to fundamentally rewrite the Bill, there is a clear need for serious, independent scrutiny mechanisms to prevent regulatory and ministerial overreach.
An Independent Reviewer of Online Safety Legislation, modelled partly on the Independent Reviewer of Terrorism Legislation, could provide some accountability.
The Independent Reviewer would need to be properly resourced and empowered to scrutinise the activities of the Secretary of State and Ofcom and communicate findings to policymakers and the general public.
An Independent Reviewer, properly empowered and resourced, could stand up for freedom of expression, privacy and innovation while being a bulwark against future authoritarian demands.