Under the Online Safety Bill, Britain could become less free

Editorial: So far as free speech is concerned, the danger is the ‘chilling effect’ the legislation will have on online freedom of expression

Ambitious to the point of folly, the bill seeks to make Britain the safest place in the world to be online (PA)

Strange to say, but Britain’s proposed new online safety legislation, now embarking on a difficult journey through parliament, has something in common with the last days of communism in Hungary. By the late 1980s, censorship in the former people’s paradise had broken down so badly that there was no longer any central control over what could be published, performed or broadcast.

Far from liberating journalists and producers, however, this meant that people no longer knew where they stood, and those involved in any kind of journalistic or creative activity, or in any of the government departments, could be their own censor. Much effort was wasted on writing anodyne material that was still deemed by some bureaucrats to be seditious, with other officials letting all manner of anti-Soviet diatribes into the public domain with a cheery wave. Chaos reigned.

So too with the Online Safety Bill. Ambitious to the point of folly, it seeks to make Britain the safest place in the world to be online. That is a noble aim; but how to do it? One way not to do it is to force every company, large or small, to be responsible for everything that is carried on its platforms.

It may be true that some – perhaps Facebook, for instance – function more as publishers than merely as messenger services, and are conduits for free speech, but asking them to micromanage the contributions of their users sets them an impossible task. It would be difficult enough if the criteria were clearly set out, and consensual, but they are not.

Aside from the transmission of, for example, child pornography, and the plain incitement of terrorism (already unlawful), there’s not much that is consensual about social and political values in our polarised free world. Powerful figures such as Elon Musk, Twitter’s putative new owner, flirt with defying even societal norms – Musk describes himself as a “free speech absolutist”.

Like most absolutism, that spells strife. He isn’t one of life’s self-regulators, and will no doubt find the UK’s new law irksome – if not contemptible. In a battle between Mr Musk, digital and culture secretary Nadine Dorries and the British state, social media will probably win. In the end, the internet is virtually uncontrollable in a free society, and people cherish their freedom to use it more than they fear the harm it can do.

The difficulty with delineating what might be called a digital Overton window has lumbered the bill with a useless definition of online harm: “That which presents a material risk of significant harm to an appreciable number of adults”. But what harm is that – physical? Financial? Mental?

Is the harm measured by those affected, or is it adjudged by those trying to moderate the plethora of media channels, from TikTok to Instagram to the crazier comments on mainstream news websites? Or a bit of both?

And how can anyone gauge what an “appreciable number of adults” is? In a country of 66 or so million inhabitants, is it 1,000, or 100,000, or a million? Should weight be given to the fact that those offended or harmed represent a high proportion of a small minority group, such as Travellers, say, or (more topically) transgender people?

What if the team at LinkedIn view some comment as acceptable, but the same remark on Facebook is summarily taken down? There is no means to ensure consistency, and because it is left to the judgement of myriad players, it cannot be achieved.

So far as free speech is concerned, the danger, identified by the relevant select committee at the time, is the “chilling effect” the legislation will have on online freedom of expression. The Open Rights Group (ORG), a UK-based digital campaigning organisation working to protect the fundamental rights to privacy and free speech online, say: “Due to the volume of content online, the only way service providers can approach their duties is by using AI, and this risks overzealous removal of legitimate speech and the limiting of freedom of expression.

“The size of the penalties, and the potential for criminal liability for managers, have also been highlighted as potential causes of excessive censorship ... It will create a culture of fear which results in a phenomenon known as ‘collateral censorship’, where service providers and companies feel they have no choice but to take down vast swathes of content which may be perfectly legal, perfectly subjective, and perfectly harmless, lest they face sanctions, penalties, and even personal arrests for getting it wrong.”

The bill has an answer to all of that, and it is... Nadine Dorries. The secretary of state – who could feasibly be a partisan figure with strong views (as the current one is) – will have the power to issue instructions to the principal regulator, Ofcom, about how the legislation should be enforced. Social media companies and news organisations will need to second-guess what Ofcom thinks. The potential for abuse of that power is apparent.

The Independent has a proud reputation for brave reportage and committed campaigning and the temptation for ministers of any party to intervene where they detect “bias” or “misinformation” is powerful. But such dangers, if they transpire, can be dealt with using existing laws and regulations. There is no need to extend the reach of the state into newsrooms via Ofcom guidance. During the Iraq war and again during the campaign for a final say referendum on Brexit (where The Independent pursued a sometimes lonely path), minsters in the Blair and Johnson governments did try to influence coverage across the media, and there is a thin line between making a case and bullying a media organisation into submission. History shows that it is in times of war and civil strife that freedom of the press is in the greatest jeopardy and when it demands the greatest protections.

To keep up to speed with all the latest opinions and comment sign up to our free weekly Voices Dispatches newsletter by clicking here

There is no doubt that terrible things happen online, and that tech giants are responsible for the infrastructure of free speech. Specific measures are obviously needed for “new” media.

But the problem with the Online Harms Bill is that so many of the harms it proscribes, and the rights it seeks to defend, are already covered by legislation and case law relating to human rights, terrorism, safeguarding, discrimination and more. Untidy as all of that is, it constitutes a framework that balances rights and responsibilities.

Under the Online Safety Bill, Britain might well end up being the safest place in the free world in which to go online, but also the least free to say and see what it chooses. That, surely, is not what parliament intends.