'Duty of care' is just a polite way of saying 'duty of censorship'
There are many flaws in the government’s draft Online Safety Bill (formerly known as the Online Harms Bill). The most ironic is that it gives exemptions for content of ‘democratic importance,’ while outlining a new regime of regulating what can be said online that Index on Censorship describes as “the most significant change in the role of the state over free speech since 1695.”
By imposing a ‘Duty of Care’ on the providers of online platforms, the UK Government would not only be outsourcing the censorship of content to private companies, most of them based in America, but giving them an incentive to pre-empt any risk of harm. It would not be enough to remove harmful content after the event. The platform provider would be expected to ‘manage and mitigate the risk of harm’ under the threat of fines up to 10% of company turnover.
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This ‘Duty of Care’ is an idea imported from the world of physical dangers, where your employer has a duty to check the workplace power tools are safe, and your landlord must have the gas boiler inspected. It relies, says Gavin Millar QC, on a prior relationship where such an expectation is reasonable, and is unsuited to the internet where, by definition, content you post may be seen by millions of strangers whose tastes and mores are very different from yours. But ‘Duty of Care’ is, says Millar, a “less objectionable, more cuddly phrase than ‘Duty of Censorship’.”
This censorship would go far beyond illegal content, such as threats or child pornography, and include anything that might cause ‘physical or psychological harm.’ The breadth of this definition is an invitation to social media companies to err on the side of caution. Humour, dissent, heated argument, rudeness, that would be legal if spoken directly in a public place, could become subject to censorship.
Like it or not, online forums are now the place where much public conversation and debate takes place. That is precisely why uncivil behaviour online, witch-hunting, mobbing, personal abuse and threats, are a problem for democracy, because they discourage the targets of such bad behaviour from participating in public discussion. But the answer to this problem is not the pre-emptive removal of words that might entail a risk of some unspecified harm.
Surely our elected government has a Duty of Care towards the democracy that put them in power, and a responsibility to all of us to protect the freedom of speech that is as vital for democratic societies as being able to cast a vote? They need to look again at the Online Safety Bill and ask, if it becomes law, whether every citizen’s right to freely express our political views would be safe.