14 Jul 22 | Opinion, Ruth's blog, United Kingdom
“Unintended consequences”, “ideologically incoherent”, “won’t change culture or make us safer”.
I have written all these words and many more about the British Government’s Online Safety Bill. Index on Censorship has spent the last eighteen months campaigning against the worst excesses of the Online Safety Bill and how it would undermine freedom of expression online.
Our lines have been clear:
1. What is legal to say offline should be legal online.
2. End to end encryption should not be undermined.
3. Online anonymity needs to be protected.
The current proposals that were progressing through the British Parliament undermined each of these principles and were going to set a new standard of speech online which would have led to speech codes, heavily censored platforms, no secure online messaging and a threat to online anonymity which would have undermined dissidents living in repressive regimes.
So honestly, I am relieved that the government has, at almost the last minute, paused the legislation.
I am not opposed to regulation, I do not for a second believe that the internet is a nice place to spend time and nor would I advocate that there shouldn’t be many more protections for children and those who are vulnerable online. We do need regulation to limit children’s exposure to illegal and inappropriate content but we need to do it in such a way that protects all of our rights.
This legislation, in its current iteration, failed to do that, it was a disaster for freedom of expression online. The proposed “Legal but Harmful’ category of speech would have led to over deletion by online platforms on a scale never seen before. Algorithms aren’t people and frankly they will struggle to identify nuance, context or satire or even regional colloquialisms. With fines and the threat of prison sentences, platforms will obviously err on the side of caution and the unintended consequence would be mass deletion.
So today, we welcome the fact that the legislation has been paused and we call on the new prime minister and the next secretary of state to think again in the autumn about what we are actually trying to achieve when we regulate online platforms. Because honestly, we won’t be able to make the internet nicer by waving a magic wand and removing everything unpleasant – we need to be more imaginative in our approach and consider the wider cultural and educational impact.
So, as I have said in the media overnight, this is a fundamentally broken bill – the next prime minister needs a total rethink. It would give tech executives like Nick Clegg and Mark Zuckerberg massive amounts of control over what we all can say online, would make the UK the first democracy in the world to break encrypted messaging apps, and it would make people who have experienced abuse online less safe by forcing platforms to delete vital evidence.
Let’s start again.
04 May 22 | News and features, United Kingdom
The Online Safety Bill has simple, laudable aims – to make the online sphere more safe. But despite almost seven years of debate, thousands of hours of Parliamentary scrutiny, analysis from civil society, business and the media, there is still significant uncertainty about how the Bill will work in practice. The Government is still not able to define terms at the heart of the legislation such as “legal but harmful” or give the as many as 180,000 technology companies big and small who will implement this new legal framework clear guidance on how this landmark legislation should operate.
To fill this gap and help explain what the Bill will mean in practice, the Legal to Say Legal to Type campaign has instructed media law expert Gavin Millar QC of Matrix Chambers to produce the first analysis of the implications of the Online Safety Bill on UK citizens’ freedom of speech.
The QC’s opinion explains and analyses the broad implications of the Government’s new online safety regime against current freedom of expression laws and found that the Bill will significantly curtail freedom of expression in a way that has profound consequences for the British media and journalism, courts and the UK’s digital economy. The Bill gives the Secretary of State overseeing the legislation unprecedented powers to curtail freedom of expression with limited parliamentary scrutiny.
The Bill, which received a second reading in Parliament on 19 April, does not comply with Article 10 of the European Convention on Human Rights, and far from the claim of the Culture Secretary that the Bill will protect free speech it actively undermines existing legal protections in an unprecedented manner. This new analysis shows how the Online Safety Bill as currently drafted ends the historic principle in law that people can publish what they like, unless the state specifically and clearly passes laws to the contrary.
This report is not a comprehensive dissection of the flaws in the Bill which are too vast to deal with succinctly. For example, the UK Independent Reviewer of Terrorism Legislation, Jonathan Hall QC has recently publicly criticised the Bill as being “ineffective on terrorism”. The chief criticism he lays is that “the Bill defines ‘terrorism content’ by reference to terrorism legislation, but ignores intention and defences. This leads to some very odd outcomes. It’s hard to see how it provides a workable framework for regulation.”
The ambiguity of the drafting and the lack of governmental consideration on the Bill’s intersection with existing linked areas of law is indeed staggering. The idea that speech can be lawfully moderated without properly adjudicating on an individual’s intention and the context of the speech is nonsensical – irrespective of whether your concern is terrorism, crime or freedom of expression.
Index on Censorship believes that the consequences of the Bill (intended and unintended) go beyond what has been considered in Parliament to date, for example:
- The Bill violates freedom of speech as defined in UK and international law.
- Protections for media content are not as wide as existing human rights for journalists
- Pro-active state-enforced censorship by algorithm has questionable legality.
- New powers for platforms such as Meta, Twitter, and even companies like Apple, will mean they may be performing functions of a public nature under the “Duty of Care” and could be subject to judicial review.
- The Secretary of State for Digital, Culture, Media and Sport will have an unparalleled ability to censor.
- The proposal to proactively monitor private communications lack safeguards for journalistic or legally privileged material.
The Government has ended up in this position having disregarded all the learnings from regulation of the online space over the last twenty years, including some of the fundamental building blocks of the internet namely intermediate liability protections. This is despite pre-legislative scrutiny identifying flaws in the draft Bill.
In summary, the legal advice, published in full in this report, found:
- The regime proposed by the Bill does not contain the statutory safeguards that would be required to prevent or limit the risk of violations of the right to freedom of expression.
- The structure of regulation offers no prospect of ‘fact-specific’ adjudications on speech.
- Harmful speech has no legal basis and risks restrictions on speech that are too broad and therefore open to abuse through selective enforcement.
- On the face of the Bill there appears to be a risk that platforms, and possibly Ofcom, may access confidential journalistic material in carrying out their statutory functions.
- ‘Democratic importance’ protections are not as wide as existing human rights protections as they only cover a limited form of political expression.
The report is available to read in full below or to download here.
22 Apr 22 | Afghanistan, China, France, Israel, Opinion, Palestine, Russia, Ruth's blog, Ukraine, United States
I regularly start my weekly blog with the exclamation “there is just too much news!” Too much horror and heartbreak and this week the assertion is all too true.
Russia has invaded a sovereign country and daily we are seeing evidence of war crimes on the continent of Europe; China is arresting yet more democracy activists on the flimsiest of excuses; there have been bombings targeting schools in Afghanistan; a neo-fascist is, yet again, in the final run-off in the French Presidential elections; there are riots in Sweden against the far-right with dozens hurt; people are starving in Shanghai under Covid-19 restrictions; there is active conflict again in Jerusalem, with over 150 Palestinians hurt in clashes after a series of terror attacks targeting Israelis in recent weeks; another video of a black man being fatally shot by the police has emerged in the US – Patrick Lyoya was killed, while being held on the ground, defenceless, on 14 April and riots have followed in Michigan.
Our team at Index is working on every one of these news stories. We work with people on the ground, and we commission dissidents and writers, in country, to give us a first-hand account. In the twenty-first century we can speak to people in every corner of the globe, as events are happening, because of the internet and the social media platforms which afford us all a level of protection because of end-to-end encryption. We work with people on the ground who would be arrested, tortured, or even killed because they want to share their experiences with the world. They want the world to know what is happening to them and to their communities. They are on the frontline in the perpetual fight for our democratic right to freedom of expression. They are vulnerable because of who they are and what they want to share with us, whether that’s their writings, their opinions or their art.
They are brave and inspirational and determined to stand up for what is right. For as long as they want to tell their stories there is a moral onus for us to listen to them.
Which brings me to the current proposals to regulate our online lives currently being progressed in the European Union and in the United Kingdom. In Europe, today (Friday) the final negotiations on the substance of the Digital Services Act are underway and, in the UK, the Online Safety Bill began its parliamentary journey on Tuesday. Index is working actively with partners to try and mitigate the worst aspects of both pieces of legislation and we were in Brussels this week to make the case for additional protections for freedom of speech. Our overriding goal is to make sure that our access to those brave dissidents is protected and that our rights to discuss the detail of these horrors are protected. To make sure that while legislators are trying to ‘protect’ us online they don’t end up inadvertently silencing us.
Index advocates for free expression within the protections afforded to us by the European Convention on Human Rights. There is no right not be offended. There is no right not to see things online, or in real life, that will upset you. Of course, we all want to protect each other from seeing the worst aspects of human life – that’s an admirable aspiration but it isn’t the grounds for making new law. In fact, it’s the exact opposite – legally we have protected freedom of expression, it’s a fundamental right. I have written before about our concerns regarding online regulation and in the coming months I’ll be writing extensively on it – but we start with the basic principle – what is legal to say should be legal to type. And that should be the case whatever any new legislation seeks to amend.
11 Oct 21 | Opinion, Ruth's blog
[vc_row][vc_column][vc_single_image image=”117686″ img_size=”full” add_caption=”yes”][vc_column_text]As you may have seen from our social media feeds and our website, Index on Censorship is working to ensure MPs and the public are aware of the unintended consequences that may arise from the UK Government’s planned Online Safety Bill.
The Bill is based on the ‘duty of care’ concept, which underpins health and safety law in the workplace. However, there is a huge difference between protecting workers from workplace injury and protecting citizens from harm on the internet at the same times as protecting our fundamental freedom of expression rights.
The Bill has introduced the concept of ‘legal but harmful’ and would give social media platforms the power to remove content that could be considered ‘harmful’ to some people. But who makes that decision? Governments, private companies, an algorithm? Who decides when an idea is harmful but remains legal? Where would we be if the suffragettes had been considered harmful? Where would we be if Pride marches had been considered harmful? Where would we be if the civil rights movement had been considered harmful? This is a fundamentally flawed concept.
We already have laws against child abuse, against hate speech, and against death threats – what we need is not more legislation, but more training and resources for the police and relevant organisations to tackle these crimes. The risk with the Online Safety Bill is that not only are these resources not given to tackle issue of child abuse, but that more freedoms and rights are taken away from people and our democracy threatened.
The EU are now developing their own online legislation along the lines of the Online Safety Bill with their Digital Services Act. Across the world, the dominance of social media is generating real issues for regulation and, particularly, in considerations of who is responsible for what is posted online and what is liable to be taken down. Determining the answers to both of these questions is not a simple process with no simple answer but considerable pitfalls for democratic rights. Failing to answer these questions in hurried legislation is a poor substitute for a considered response to what are legitimate concerns.
Over the next few months, Index will be working with European organisations to raise awareness of the ‘unintended consequences’ of the Digital Services Act that will hopefully also help to inform the debate here in the UK. The internet is worldwide, borders are irrelevant, and we have to ensure that vulnerable and marginalised voices are not erased from our societies. The internet is our new Wild West, but we must be careful of knee-jerk reactions that aim to do some good but end up restricting the freedoms we all value.
We have launched the #OffOn campaign to tell MEPs not to switch off our freedoms online and instead to protect fundamental freedoms of expression while strengthening the rule of law relating to criminal offences.
The aims of this campaign are to:
- Preserve what works and fix what is broken
The internet is still a formidable network that connects and empowers people. Preserving and enhancing fundamental rights must be the cornerstone upon which any legislation is built.
- Limit online regulation to addressing illegal content
Ensure that the process of judicial review is at the core of any adjudication mechanism.
- Support user empowerment and wider participation
Legislation should focus on putting users first by allowing them to have more control over the content they see, the ability to remain anonymous online, the right to end-to-end encryption and the right to be faced with proportionate and fair content moderation practices.
- Ensure due process and legal certainty
The rules applying to the online environment should offer the same due process safeguards as those that apply offline. Arbitration about the legality of content, or its use, often entails long and careful assessments by courts offline, while unrealistic turnaround times are imposed online for the same type of decisions. We must protect the careful balance of the rights at stake, as well as create an environment of legal certainty.
- Promote these principles in international discussions
The principles and objectives we endorse should not apply only to Europeans – they should be at the centre of the EU’s contributions in any discussions in multilateral and bilateral fora it participates in.[/vc_column_text][/vc_column][/vc_row]
