The ultimate balancing act: how to keep people safe online while protecting free speech

The passage of the troubled Online Safety Bill through parliament has been delayed – some less charitable folks may say kicked into the long grass – until the autumn, when a new PM will be in place.

The Bill sets out how online platforms should deal with ‘harmful’ content, with the government claiming it will make the UK “the safest place in the world to be online, while at the same time defending free expression”.

It’s taken a marathon effort to get to this stage. The first draft paper for this Bill was introduced by former PM Theresa May back in 2019. Since then, it has undergone significant parliamentary scrutiny and countless amendments to get it to the place where it’s at now.

Central to the Bill are rules for the social media giants, which allow users to post content, and for the search engines, which enable us to find it. These platforms will be answerable to a regulator with severe penalties for those in breach of the code of conduct.

The Bill also aims to remove illegal material online such as posts relating to terrorism and child abuse, while sites accessed by children will have a duty to protect them from material on the likes of self-harm or eating disorders. It will also be harder for children to access porn.

The largest – and most high-risk sites – will have to make clear in their terms and conditions what is and what is not acceptable on their site, and make stringent efforts to enforce these policies. The thinking is that this will help manage the proliferation of harmful material relating to abuse and harassment, or exposure to content encouraging things like self-harm or eating disorders.

These platforms and search engines will also be expected to have processes in place to prevent fraudulent adverts being published or hosted on their service – a move welcomed not only by us in the comms world, but also by those unlucky enough to have been defrauded by internet scammers.

The Bill promises that its rules will not impact freedom of expression. But therein lies the rub. How can measures that restrict content not impact free speech? How will the concept of ‘harm’ be interpreted?

While some welcome the Bill for being a crucial piece of legislation, others are concerned that it is too heavy-handed in its approach and would have far-reaching ramifications in terms of free speech, and not in a good way.

Free speech is recognised as a fundamental human right in the Universal Declaration of Human Rights and international human rights law by the United Nations.  As a democratic nation, we want it, we applaud it and we encourage it. The trickier issue, as this Bill has highlighted, is around how – and indeed if – we should manage it.

Concerns have been raised around the Bill, including by some of the government’s own backbenchers, about it being an albeit it “well-intentioned” step in the wrong direction.  Former Tory MP leader, David Davis, is one of those voicing his fears, saying that the Bill could be “the biggest accidental curtailment of free speech in modern history.”

Media Reform UK, which brought together academics, journalists and campaigners following the phone hacking scandal, says the Bill should be amended to “remove the press exemption, reduce the unprecedented powers it gives the Sec of State and scrap the ‘legal but harmful’ category.”

The latter is particularly problematic as it begs the question: if something is harmful enough to be censored, why isn’t it illegal?

Are these dissenters right? The White Paper from which the Bill was developed is a well-considered and heavily-researched piece of thinking. But the inconsistency of applying draconian regulation only to social media and the near-impossibility of defining ‘harm’ in a way that doesn’t impact democratic debate may mean it’s fatally flawed.

Whether it will ever reach the statute book remains to be seen. If it does, don’t expect the controversy to go away – its implementation could be explosive.

This article was written by our chief executive, Angharad Neagle, and featured in the Western Mail on 25 July 2022