Online Security Bill Opposed on “Free Speech” Grounds, But Platform Protection Urgently Needed
It has been a long journey to get here. After five parliamentary inquiries, alleged election interference, decades of concern about children online and multiple suicides by victims of online hate, the government recently released its online safety bill. If passed, the legislation will force platforms to better protect us online.
But the bill could fail. The libertarian conservative leader David Davis wants to lead the reforms in the cultural wars. Davis, who called the legislation “catastrophic for free speech,” joined the Index on Censorship campaign. As a committee of senior parliamentarians prepare to review the legislation, political forces from all sides join Davis in opposing the bill.
Some setback against the new regulations is inevitable, but this online version of the free speech war game takes place in a special context. Those targeted by the regulation, namely large tech platforms like Facebook and Google, which will face huge costs under the regime, can support it, while many of those it is designed to protect – users of these platforms – are about to cry foul.
The bill is in part the result of a two-year campaign led by the The telegraph of the day and is seen by some as revenge for newspapers on social media platforms that have undermined the print market. Newspapers have clearly made progress in their understanding of free speech. Ironically, the newspaper, which led a principled campaign vs any form of press law during the Leveson inquiry argued that self-regulation would never be enough to fix online ethics. Only a law would do.
Here is this law: 141 clauses, five annexes, 133 pages. While the central idea – applying a “duty of care” to technology platforms – may sound like a minor tightening of ethics, the law’s promise is more ambitious. His supporters hope he will turn the Internet Service Wild West into a managed prairie. Less noisy and unpredictable yes, but less gunslingers, boxcars and, hopefully, fewer gunshot wounds.
The due diligence would apply primarily to larger platforms such as Facebook, Google, Apple and Microsoft, where users spend most of our time and data, but Twitter is also in the crosshairs of the new law. If adopted in its current form, these large research and social media platforms will have new obligations to conduct risk assessments, design their services in such a way as to minimize harm (e.g. by requesting proof of age for adult services) and to take down content deemed “harmful” much more quickly.
This will include not only posts that meet the test of for example incitement or racism and are therefore illegal, but also content that is legal, but considered harmful by the regulator and violates the rules of a particular platform. And here’s the kicker: If they don’t protect the public from some form of content, they could be fined. If they refuse to protect us after repeated warnings, executives could be held criminally responsible.
The extension of new controls over content that is not even illegal has sounded the alarm. Opponents of the bill say it will lead to a cooling of free speech comparable to censorship in China. According to Graham Smith, one of the Internet’s leading advocates, “If the road to hell is paved with good intentions, this [Bill] is a highway. Index on Censorship says Ofcom’s role and the exemptions for democratically important news content create a “two-tier system that censors the masses and privileges the elites.” Index, like Davis, is concerned about the censorship of speech not just by the government, but by tech companies themselves. Many of these questions are legally and philosophically unresolved, which is why they will continue to run.
Cynics can see the regime’s appeal to Facebook: If the cost of compliance is high enough, only companies that can make the investments necessary to comply will survive. The duties of risk reduction are the most severe for the biggest players, precisely to encourage competition. But it’s impossible to predict how the frame will unfold. We are therefore perhaps witnessing the establishment of a regulated oligopoly.
The government is developing a new approach to platform competition and establishing a digital markets unit, which offers the prospect of tighter regulation in the public interest and some oversight of the entrenched dominance of large platforms. But all of this must be out in the open. If we establish a social pact in which these behemoths receive long-term benefits in return for their service in the public interest, we need constant oversight from competition and other authorities, and all regulators need a much deeper engagement with the public on what constitutes that public interest. Otherwise, the danger is that we create centers of irresponsible power that end up undermining democracy.
The government has shown that it takes responsibility seriously by appointing Damian Collins to the committee overseeing the review of the legislation. The MP, who has also chaired one of the most comprehensive and ambitious parliamentary inquiries leading to legislation, will bring with him a determination – and an impressive list of global parliamentary contacts – to get the job done.
The problem with the online security bill in its current form is that it fails to engage civil society and gives too much power to government and private actors. Only civil society can balance the twin threats of government and private capture, and it cannot do so unless parliament deliberately sets this as a goal, including transparency and public participation on the bill. the place of the dead hand of the bureaucracy, the corruptible grip of the executive and the impenetrable, often foreign, private power. The joint control committee must urgently seek amendments to do this.
For those of us who have been watching the regulations in this area for many years, it feels like the beginning of a final phase in which structures and frameworks will be in place for many years to come. The e-security bill in principle offers the possibility of channeling accountability, not through government or private, opaque bodies, but directly to civil society. Parliament simply needs to take the necessary steps to make this a reality, and not get drawn into fictitious free speech wars as they arise.