MPs must rethink this dire Bill

The government has delayed further debate on the Online Safety Bill until the Autumn. The Bill will result in industrial scale systems to remove content deemed unsafe. The delay is an opportunity for Parliament to re-think the consequences for free speech and privacy. 

The Bill has had remarkably little Parliamentary time, given that it engages our most precious right to free speech. This week it has been in the House of Commons’ Report Stage – the first of just two days allocated. 

It should have been the opportunity for all MPs in the Mother of all Parliaments to consider the Bill and debate its finer points. Instead, it was a vision of a mostly empty chamber, embodying a deprioritisation of democratic debate in the face of the need to find a new Conservative Party leader. 

The government’s aim was to complete not only Report Stage, but also the Third Reading before the Parliamentary recess starts on 21 July. Report Stage is the time for all MPs – not just the Bill Committee – to examine it. 

This timing would have been little enough for a small Bill, but for a gargantuan effort like the Online Safety Bill – one that engages the very cornerstones of our democracy – it fell very short of what was necessary. 

The Bill is misconceived, driven by a political rhetoric about the harms of big tech, and a blindness towards the way in which the measures in the Bill could themselves cause other harms. In imposing duties of care onto online platforms, it turns private companies into law enforcers, acting on behalf of the government (and at their own expense).

Online platforms are tasked with enforcing illegal content. The Bill lists some 28 criminal offences, without giving specific definitions of what the associated social media posts should look like. 

The content should be removed, and users prevented from accessing it, potentially creating a 21st century form of prior restraint. The basis for the removal will be what the platforms ”reasonably consider” to meet the government’s criteria (not evidence, but subjective opinion). 

The government brought in an amendment (New Clause 14) that online platforms should pre-empt the judgement of a court of law, and take action on that basis. 

Online platforms will also be asked to tackle “content harmful to adults” but they are not put under a statutory duty to remove it. Instead – here’s the catch – they must say in their terms how they will treat this content, and the regulator, Ofcom is to supervise. 

One of the options is to shadow ban – the most pernicious of restrictions because the user does not know what is happening. An amendment at Report Stage says they can “take no action in relation to harmful content. This sounds good, but it could be equally pernicious in suppressing reach and engagement of users’ posts, whilst not removing it. 

Ofcom has a duty to ensure that their terms and conditions are enforced. It will be under political pressure to ensure they do censor this content. Ministers have power to direct Ofcom to amend its Codes of Practice, that will govern this process “for reasons of public policy”.

These powers have be criticised by MPs on both sides of the House, but the government has dug its heels in and they have not been removed, despite various amendments seeking to do so. 

So what about free speech? There has been little debate about the way the free speech rights are impacted. The new Minister for Online Safety, Damian Collins, insisted that “the Bill does not require platforms to restrict legal speech—let us be absolutely clear about that”. He was supported by his predecessor Chris Philp. 

Human rights NGOs, including ORG, were not invited to give evidence to the Bill Committee. They have however explained repeatedly that the Bill needs huge changes.

However, Joanna Cherry MP acknowledged that there is a “risk of an increase in content moderation” . Noting that free speech is not an absolute right, she reminded MPs that  “freedom of speech is an important right that this House should promote, with the checks and balances set out in Article 10 of the ECHR. 

This means that if the government mandates restrictions on free speech, or interference with it, then it must also provide safeguards for those speaking lawfully. Courts have established that blocking, filtering, and suspending users’ accounts are forms of interference with freedom of expression. 

Taking a different approach, David Davis argued that the measures in the Bill would produce unintended consequences, and tabled an amendment to remove entirely clause 13 that mandates online platforms to tackle “content harmful to adults”. 

However, the underlying flaw of the whole Bill was not addressed at denate. Without the protections and safeguards of the ECHR Article 10 framework, the Bill presents a serious threat to free speech. 

It is painful to consider that this might be because the government wants to leave the European Convention on Human Rights, and has prepared the ground in the Online Safety Bill. 

Democratic scrutiny was very much needed on these important issues, and the near-empty chamber told a very depressing story. The new delay allows Parliament to take more time and re-think the complex issues in the Bill. Of course, it may well depend on who becomes the new Prime Minister, but just as much, on what is said and promised during the leadership debates over the coming weeks.