Counter-terrorism measures in Online Safety Bill ‘muzzled and confused’, watchdog says

Independent Reviewer of Terrorism Legislation says law’s definition of ‘terrorism of content’ should be reviewed

The bill aims to crack down on the spread of terrorist material (Dabiq)

Counter-terrorism measures in the government’s Online Safety Bill could be “muzzled and confused”, a watchdog has said.

Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, recommended that parts of the delayed law are rewritten to provide “greater clarity”.

The bill aims to force online platforms and media companies to find and remove terrorist content, and gives Ofcom powers to fine those who do not.

But Mr Hall said there were problems with its definition of the “terrorism content” that will be regulated.

“Duties in the bill - aimed at minimising ‘the risks of [terrorist] harm to individuals arising from illegal content and activity’ - are unclear,” said an assessment published on Wednesday. “It risks creating legislation that is muzzled and confused.”

The bill defines it as anything where the image, words or video, or the publishing, viewing or accessing of it, “amount to” a terror offence.

Mr Hall said that under the terror laws listed, content itself can never amount to an offence and that crimes must be committed by people.

“Conduct is rarely sufficient on its own to ‘amount to’ or ‘constitute’ a terrorism offence,” he added.

“It must ordinarily be accompanied by a mental element and/or take place in the absence of a defence.”

The watchdog said that only three offences listed in the bill can be committed merely by possessing, viewing, publishing or sharing content, and that 19 others require extra factors.

He warned that those extra elements cannot be “assumed” without any evidence or looking at potential defences.

“Although tech companies, the regulator, the government and the public may have (or think they have) a broad sense of how the bill is intended to reduce the risk of terrorism online, there needs to be common understanding and certainty about the new statutory duties,” Mr Hall wrote. “These depend on the definition of ‘terrorist content’.”

He said the bill’s current wording left “both a risk of too little and too much content moderation” because the meaning was unclear, making it hard to enforce.

“There is room for greater clarity about the policy of the bill when it comes to terrorism legislation,” he added.

“The bill does not allow for the feeding in of specialist assessments by the government or counter-terrorism police as to what content objectively falls within these categories.”

A government spokesperson said the Online Safety Bill would “make the internet a safer place by requiring internet companies to protect children, tackle illegal activity and uphold their stated terms and conditions”.

“The bill will protect public safety by requiring internet companies to reduce and remove illegal content, including illegal terrorist content online,” they added.

“The Home Office works closely with the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC and will consider his analysis to ensure the bill makes use of his expertise.”