29 Nov 22 | News and features, United Kingdom
There has been significant commentary on the flaws of the Online Safety Bill, particularly the harmful impact on freedom of expression from the concept of the ‘duty of care’ over adult internet users and the problematic ‘legal but harmful’ category for online speech. Index on Censorship has identified another area of the Bill, far less examined, that now deserves our attention. The provisions in the Online Safety Bill that would enable state-backed surveillance of private communications contain some of the broadest and powerful surveillance powers ever proposed in any Western democracy. It is our opinion that the powers conceived in the Bill would not be lawful under our common law and existing human rights legal framework.
Index on Censorship has commissioned a legal opinion by Matthew Ryder KC, an expert on information law, crime and human rights, and barrister, Aidan Wills of Matrix Chambers. This report (a) summarises the main legal arguments and analysis; (b) provides a more detailed explanation of the powers contained in Section 104 notices; and (c) lays out the legal opinion in full.
The legal opinion shows how the powers conceived go beyond even the controversial powers contained within the Investigatory Powers Act (2016) but critically, without the safeguards that Parliament inserted into the Act in order to ensure it protected the privacy and the fundamental rights of UK citizens. The powers in the Online Safety Bill have no such safeguards as of yet.
The Bill as currently drafted gives Ofcom the powers to impose Section 104 notices on the operators of private messaging apps and other online services. These notices give Ofcom the power to impose specific technologies (e.g. algorithmic content detection) that provide for the surveillance of the private correspondence of UK citizens. The powers allow the technology to be imposed with limited legal safeguards. It means the UK would be one of the first democracies to place a de facto ban on end-to-end encryption for private messaging apps. No communications in the UK – whether between MPs, between whistleblowers and journalists, or between a victim and a victims support charity – would be secure or private. In an era where Russia and China continue to work to undermine UK cybersecurity, we believe this could pose a critical threat to UK national security.
The King’s Counsel’s legal opinion includes that:
● Section 104 notices amount to state-mandated surveillance because they install the right to impose technologies that would intercept and scan private communications on a mass scale. The principle that the state can mandate the surveillance of millions of lawful users of private messaging apps should require a much higher threshold of legal justification which has not been established to date. Currently this level of state surveillance would only be possible under the Investigatory Powers Act if there is a threat to national security.
● Ofcom will have a wider remit on mass surveillance powers of UK citizens than the UK’s spy agencies, such as GCHQ (under the Investigatory Powers Act 2016). Ofcom could impose surveillance on all private messaging users with a notice, underpinned by significant financial penalties, with less legal process or protections than GCHQ would need for a far more limited power.
● Questionable legality: The proposed interferences with the rights of UK citizens arising from surveillance under the Bill are unlikely to be in accordance with the law and are open to legal challenge.
● Failure to protect journalists: if enacted, journalists will not be properly protected from state surveillance risking source confidentiality and endangering human rights defenders and vulnerable communities.
The disproportionate interference with people’s privacy identified by the legal analysis paints an altogether different picture of the Online Safety Bill. Far from being a law to establish accountability for online crime, the legislation, as drafted, opens the door for sweeping new powers of surveillance with little public debate over their purpose and proportionality. Unless the government reconsiders or parliament pushes back, these powers are set on a collision course with independent media and journalism as well as marginalised groups.
Download this new legal opinion on the Online Safety Bill here
16 Nov 22 | News and features, United Kingdom
Irene Khan
UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, by email.
CC – Dr. Ana Brian Nougrères, UN Special Rapporteur on the right to privacy, by email.
15.11.22
Re: Concerning developments for human rights online in the UK
Dear Ms Khan,
We are writing to you regarding the UK Government’s Online Safety Bill; legislation which we believe will fundamentally undermine the rights to freedom of expression, privacy and other human rights online in the UK.
We note that in March 2022 you wrote to the UK Government expressing concerns about this Bill (OL GBR 5/2022). In your correspondence you stated:
“I believe the proposed Bill, as currently drafted, contains some key provisions that could undermine its overall objective as well as international human rights principles.”
Regrettably, since this correspondence, the legislation has in no way been materially improved to protect human rights. This is despite the fact that it has now been laid before Parliament and has been subjected to considerable revisions. We therefore urge you to use your mandates to provide recommendations to the UK Government to amend the following concerning aspects of the Bill:
The Bill will lead to the restriction of speech considered “legal but harmful”.
We are particularly concerned over the provisions of the Bill which will place pressure on the largest platforms to restrict content the government has designated to be “harmful” (clause 13). In your correspondence to the UK Government of 14 March 2022 you said of this obligation:
“The duty of care placed upon online providers to protect users of their services against legal but harmful content uses vague terms that are open to broad interpretation, such as “reasonably identify”, “material risk”, “significant adverse physical or psychological impact”, “ordinary sensibilities”, and so risks undue removal of content.”
Despite further revisions to the legislation, the Bill continues to place an obligation on online intermediaries to address content which is “legal but harmful”. Where speech of this nature was given a definition in the draft Bill, no such definition exists in the full Bill. An indicative list of possible categories of harmful content was issued by the government in June this year.1 However, this list is not legally binding and cannot be considered sufficiently precise to meet the legality requirement under international human rights standards. Rather, the power to designate speech which is “legal but harmful” lies within the power of the Secretary of State, which creates scope for political censorship and seriousl compromises the independence of the regulatory framework.
As you noted in your letter, the Bill provides little detail of the obligations regarding harmful content and providers could be required to make subjective assessments of its potential impact. Consequentially, forms of speech which are permitted in the offline world and are protected under international human rights law would be censored online, creating two different standards of permissible speech.
The Bill will mean online platforms, not courts, enforcing UK law
In your letter to the UK Government of 14 March 2022, you noted your concerns about the obligations the Online Safety Bill places on platforms to perform functions – namely the duty to remove illegal content – which should be the preserve of law enforcement bodies and independent courts. You stated:
“I am concerned that this obligation delegates to private companies a responsibility that should be exercised by law enforcement, particularly for offences where the boundary between offensive but legal and illegal conduct may be difficult to discern, such as hate crime.”
The Bill continues to require online platforms to determine whether the speech of people in the UK is legal or not and then remove it if they believe it is illegal, undermining the rule of law (clause 9). Online platforms will inevitably turn to machines, not trained people, which are unable to make such nuanced and difficult legal assessments. As a further development of this obligation, platforms will now have a duty under clause 9 of the Bill to “prevent” content (and not only limit its visibility as required under the draft Bill) that they “reasonably consider” could be what the Government describe as “priority illegal content”. Such priority content is defined in Schedules 5,6, and 7 of the Bill, as a list of criminal offences. The list includes provisions from public order and anti-terror legislation which would set the legal limits of legitimate expression. We are concerned that the new language in clause 9 could push platforms to use “upload filters” and risks collateral censorship on a large scale.
Private actors should not be tasked with making such decisions over the legality of people’s behaviour. This is the role of transparent, independent and accountable public authorities such as courts. However, the Bill does nothing to ensure that the police and courts are properly resourced to prosecute, convict, and sentence those who break the law online, depriving victims of justice.
The Bill compromises end-to-end encryption of private messages
In your letter of 14 March, you noted the importance of the right to privacy as a right which also reinforces protection of the right to freedom of expression. You stated:
“I am concerned that the inclusion of direct private messaging within the scope of the Bill could impact negatively on encryption, security and privacy. I have similar concerns regarding Ofcom’s ability to compel a service to use technology to detect child sexual exploitation and abuse (CSEA) and terrorism content on private and public channels and CSEA content on private communication channels”.
The latest version of the Bill continues to bring encrypted chat services into scope via a definition of content as anything that is “communicated publicly or privately”. The obligations on services mandated by the Bill could be imposed on providers of encrypted messaging services via an enforcement power handed to the regulator, Ofcom, without any further judicial or administrative oversight. This would allow Ofcom to mandate that a service use government-“accredited technology” to surveil private channels, even if they are protected by end-to-end encryption (clause 104).
Encryption tools have become vital for individuals to communicate securely. This is particularly true for human rights defenders, journalists, whistleblowers, victims of domestic abuse or individuals from marginalised groups. Undermining these individuals’ ability to communicate privately and securely would threaten both their safety and their right to freedom of expression.
Your other concerns regarding a media exemption; the lack of any quality standards required for the internal complaints mechanisms; the scale of fines that could be imposed on providers; the inadequate requirement on providers to “have regard” to freedom of expression; and the excessive powers granted by the Bill to the Secretary of State; have also not been addressed.
We believe an intervention from you on the legislation would be timely. The Bill has nearly completed its passage through the House of Commons and will soon enter the House of Lords for further consideration. However, in recent weeks, the Bill has been paused for further review.
We urge you to issue a statement or communicate your concerns with the Government, recalling their long-standing obligations in international and domestic law, and their recent pledges to defend freedom of expression in the UK and abroad.
Yours sincerely,
Mark Johnson – Big Brother Watch
Barbora Bukovská – ARTICLE 19
Sam Grant – Liberty
Dr Monica Horten – Open Rights Group
Daniel Pryor – Adam Smith Institute
Ruth Smeeth – Index on Censorship
12 Oct 22 | News and features, United Kingdom
Index on Censorship has been tracking the Online Safety Bill and the precursor debate on ‘online harms’ for many years. It seems that finally, under the premiership of Liz Truss, there may be the prospect of sensible and workable regulation on how content is moderated online. It has been encouraging to hear the Prime Minister confirming at PMQs on 7 September 2022 that the Bill will be amended to better balance the trade offs on safety online and individual freedoms.
So how does the government move forward with one of its signature pieces of legislation in this Parliament?
Firstly, the Bill has benefitted from high level scrutiny in Parliament and in particular by the DCMS, Joint Select Committee and Lords’ Communications and Digital Committees. These bodies have carefully heard evidence from the tech industry, civil society, victims of abuse, academics, legal experts and others and produced detailed analyses that were ignored by the previous Secretary of State for DCMS, the fourth to be charged with the task of regulating online harms. It is time to listen to the detailed scrutiny that Parliament has undertaken.
Secondly, it is vitally important that the government legislates in a way that observes the principle of legality, namely that people, business and courts can apply the rules that Parliament sets with certainty. The common law has a long tradition of presuming the legislative intent of Parliament as contributing to existing bodies of law, including fundamental constitutional principles and rights . So far however, the Online Safety Bill has sought to invert the historic right of free speech online so that perceptions of subjective harm trump objective legality. Our legal analysis indicates that if the Bill is not amended with practicability in mind, free speech would be threatened by over removal of content and tech companies would likely leave the UK – diminishing our thriving digital economy/society. Efficacy and workability should be at the heart of this new legislation, not vague commitments to cure the ills of the internet.
Thirdly, the new Secretary of State has a promising track record on this issue given her work on the Higher Education (Freedom of Speech) Bill. Indeed her comments on the problems the Higher Education Bill was designed to resolve could equally be applied to the problems the Online Safety Bill will create: “the damage that the erosion of free speech causes goes well beyond the classroom. It hits our communities, where ngenuity and diversity of ideas have flowed from throughout our country’s history. It stifles creativity, where some of our greatest artists and composers have made their name challenging the accepted wisdom of the day. The implications for our economy and our public life are catastrophic.” The new Secretary of State for DCMS should apply the dictum that what is legal to say should be legal to type.
It is never too late for the government to listen and heed the extensive warnings to prevent bad regulation. In this briefing, we have highlighted the five key areas for decision-makers to consider in order to protect free speech for adults. These changes are not an attempt to ‘water down’ the Bill but to purposefully demarcate protections that are only appropriate for children as distinguished from adults:
1. Remove the ‘legal but harmful’ provision completely
2. Prevent the algorithmic censorship of lawful speech
3. Illegality should be decided by courts not corporates
4. Private communication and encryption need protection
5. Parliament should be sovereign
Download our new briefing on the Online Safety Bill here or read it below.
23 Sep 22 | News and features, Statements, United Kingdom
Rt Hon Michelle Donelan MP
Secretary of State for Digital, Culture, Media and Sport
Department for Digital, Culture, Media and Sport
100 Parliament Street
London
SW1A 2BQ
22 September 2022
Dear Secretary of State,
Congratulations on your new role.
We are a coalition of independent organisations committed to protecting freedom of expression. We are writing to you following your appointment as the new Secretary of State for Digital, Culture, Media and Sport to request a meeting to discuss the Online Safety Bill. We believe that, in order to prevent serious damage being done to our rights and freedoms, the Online Safety Bill must be completely overhauled.
In particular, we would like to set out concerns we have about provisions in the Bill which we believe would be damaging to the rights to freedom of expression and privacy. We believe that the following areas must be addressed as a minimum:
The law should be upheld online as it is offline, but as currently drafted, the Bill would impose a two-tier system for freedom of expression, with extra restrictions for categories of lawful speech, simply because they appear online. During the Conservative leadership contest, the new Prime Minister Liz Truss committed to protecting freedom of speech in the Bill. She also said that her “fundamental principle is the rules should be the same online as they are in real life”. In its current form, the Bill does not live up to this principle,as it specifically seeks to regulate and restrict categories of free expression which the state labels as “harmful”.
We believe that Clause 13 of the Bill regarding so called “legal but harmful” speech must be dropped.
It has been widely observed that the Bill gives the Secretary of State excessive executive powers to define categories of lawful speech to be regulated and influence the limitations of our online expression. We believe that these powers would be vulnerable to politicisation by a future government.
We believe that executive powers granted to the Secretary of State, including those which would give the post-holder undue influence over communications regulator, Ofcom, must be dropped.
The Bill also poses serious threats to the right to privacy in the UK by creating a new power to compel online intermediaries to use “accredited technologies” to conduct mass scanning and surveillance of all citizens on private messaging channels. These measures also put at risk the underlying encryption that protects private messages against being compromised by bad actors. The right to privacy is deeply entwined with the right to freedom of expression and these proposals risk eroding both, with particularly detrimental effects for journalists, LGBTQ+ people, and other communities.
The Bill must not compel online intermediaries to scan the content of our private messages.
We would welcome the opportunity to discuss these points with you in more detail and would be happy to meet with you virtually or in person at a time of your choosing.
We look forward to hearing from you soon.
Yours sincerely,
Mark Johnson – Big Brother Watch
Barbora Bukovská – ARTICLE 19
Daniel Gorman – English PEN
Sam Grant – Liberty
Dr Monica Horten – Open Rights Group
Jacqueline Rowe – Global Partners Digital
Ruth Smeeth – Index on Censorship
