Despite its name, the UK’s Online Safety Bill is profoundly dangerous & will censor and criminalise lawful free speech

If you think the witch hunts against the likes of JK Rowling for daring to utter something deemed offensive by one minority or another are bad now, just wait until this ill-thought-out new law comes into force.

The old saying that 'the road to Hell is paved with good intentions' seems very apt when it comes to the UK government's Online Safety Bill, published last week. While the internet has been a powerful tool for good in so many ways, it is undoubtedly true that lots of bad stuff happens online too: fraud, misinformation, offensive statements, personal attacks on individuals and groups, and much more. Wouldn't the internet be even better if we could only get rid of the bad stuff, while keeping the good? 

That is the stated aim of the bill, which the Westminster government claims will “make the UK the safest place in the world to be online while defending free expression.” 

The trouble is that it is difficult, if not impossible, to legislate in order to fix the perceived problems without banning or restricting content that is legal and reasonable. First, there needs to be a way of distinguishing the bad from the good when Twitter alone may have 500 million posts per day. Add in Facebook, Instagram, blogs, discussion boards and all the rest and there is simply a gargantuan amount of content being shared.

Take the problem of misinformation. One way to deal with it is for big tech firms to use artificial intelligence to flag up 'fake news'. But how does a machine distinguish between a serious attempt at spreading falsehoods and satire, for example? Indeed, what is 'fake news'? I think that people arguing against vaccinations for Covid-19 are wrong. The vaccines have proven to be generally very safe, and the balance of risks against benefits leans heavily towards getting a jab. But if any criticism of vaccinations is labelled as 'misinformation', then we might miss the opportunity to discuss the data and we could miss potential issues. Moreover, clamping down on that discussion might only fuel conspiracy theories that claim vaccination is a malicious attempt to do us harm.

So, who decides what is real and what is fake? We already have a problem with social media companies deciding for us what we can or cannot see, or putting up warnings about content from particular sites, or banning certain voices, with the implication that some sources simply cannot be trusted. The authoritarian implications are obvious. Views that are regarded as unacceptable by the political mainstream can be effectively censored. Backing such judgements with the force of law, as the Online Safety Bill does – with huge fines and even the possibility of prison sentences for company executives deemed to have failed in their 'duty of care' – is only going to make things much worse.

The bill tries to get round this by making content on news publishers' websites exempt, and social media posts from 'recognised news sites' would also be protected. Such exemptions will apply to 'citizen journalism', too, but quite how Ofcom – which will be in charge of the new system – will distinguish between journalism and personal opinions is another matter. Both Ofcom and the biggest service providers will need to have robust appeals procedures, but a right to appeal decisions is hardly the same as having the right to free expression.

It also leaves service providers and publishers in a quandary, trying to remove the 'wrong' content while being mindful to preserve “democratically important” content. As the Guardian's UK technology editor, Alex Hern, concludes: “The message of the bill is simple: take down exactly the content the government wants taken down, and no more. Guess wrong and you could face swingeing fines. Keep guessing wrong and your senior managers could even go to jail.”

Things get worse when it comes to more general responsibilities. As the civil liberties organisation Big Brother Watch has noted, the bill would clamp down on any speech “having, or indirectly having, a significant adverse physical or psychological impact on an adult”. That's an astonishing broad and vague definition, opening up the possibility of malicious complaints being made against websites or social media users and services. 

There are already various forms of speech that are illegal – for example, threatening terrorist acts or inciting others to do so. But what is being suggested here is that lawful speech which is not, in itself, a criminal offence should be censored if someone claims it has caused them harm. Even messaging services – where comments are not in the public domain – would be covered by the law.

It's easy to see where we could end up if subjective interpretations of harm are backed by the clunking fist of the state. For example, Harry Potter author JK Rowling caused uproar in December 2019 for a tweet in support of Maya Forstater, a tax consultant who had tweeted “Men cannot change into women” and been sacked as a result. That's despite the careful wording of Rowling's tweet, which was very much 'live and let live' and was not remotely 'transphobic'. 

Rowling is plenty rich and popular enough to brush off such attacks. But to have your right to free speech made subject to the whims of a small minority who take umbrage seems profoundly dangerous – in Forstater's case, threatening her livelihood. If that happens already, with many people self-censoring lest they be subject to a 'Twitch-hunt', how much worse would things be if such attacks had the force of the state behind them?

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There may be a lot of unpleasant, fraudulent and wrong-headed statements and claims made online. We all need to be savvier at reading around subjects and getting a balanced and informed view of what is going on in the world. Public figures – from sports stars and celebrities to journalists and politicians – have had to develop thick skins to tolerate the many vile attacks made on them.

But the Online Safety Bill is no solution. On the face of it, the bill aims to censor the 'wrong' views. Given its poor framing, it invites the authorities, tech companies, and complainants to go even further, way beyond the notional aim to protect the vulnerable, potentially to criminalise and shut down serious dissent and disagreement made in good faith.

Defending the right to freedom of expression is vital to a free and democratic society. The downside means defending that freedom for people who want to use it to be unpleasant, discriminatory and insulting – or even simply for people with whom we profoundly disagree. It's still better to leave such judgements up to us than have corporations or governments make them for us.

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