by Timandra Harkness
Wednesday, 23
June 2021
Explainer
15:13

The Online Safety Bill is a mortal threat to free speech

'Duty of care' is just a polite way of saying 'duty of censorship'
by Timandra Harkness

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.

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.

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Matthew Powell
Matthew Powell
11 months ago

I think this correct.

The government thinks it’s holding big tech to account with this bill. In reality, they’ll just say thank you very much and ban anything remotely controversial, that’s right of centre and when the Tories complain, they’ll tell them they’re just following the laws they imposed.

Instead of taking away big techs right to censor, we’re handing them the legal authority to do so.

Penny Adrian
Penny Adrian
4 months ago
Reply to  Matthew Powell

Why not just treat them like the publishing platforms they are and let people sue if they can prove harm in a court of law? That seems a lot better than the government deciding if something online might cause someone harm with no proof. And causing distress is NOT harm.

Paul Sorrenti
Paul Sorrenti
11 months ago

being offended occasionally is good for your health. If the utter [REDACTED]s who drafted this bill don’t consider that when defining ‘care’ then they can stick this bill up their [REDACTED]

Chris Wheatley
Chris Wheatley
11 months ago

I don’t really see how I could agree with a Duty of Care – type bill because I am a subscriber to UnHerd and, hopefully, anybody can say anything on UnHerd (maybe). My number 1 concern is that I don’t want anything to do with American companies because I think that American ideas are poisonous to life.
But a question pops into my head. How do we decide who should be protected and who should not? For example, if an aged person says that that trans people are not real, presumably that would be treated as hatred or insulting behaviour. But if a trans person replies by something like, “Shut up you old fart. You should just die.” – is that also insulting?
As I get older, a straight, white, married, semi-retired person, I am aware that anyone can legally say something rude to me but maybe I can’t give back what I get. If I am semi-deaf, people can call me a deaf old coot. How would the lines be drawn?

Margaret Tudeau-Clayton
Margaret Tudeau-Clayton
11 months ago
Reply to  Chris Wheatley

I think it’s clear the lines would be firmly drawn according to the so called ‘woke’ ideology that has taken over the tech companies, so an old white person who says that biological sex matters would be regarded as contravening the duty of care to trans people.

William Cameron
William Cameron
11 months ago

What is totally dismal is that on every side we see censorship -but very little defence of free speech.
Giving big tech the right to censor is like giving the keys of the kingdom to BLM.

Last edited 11 months ago by William Cameron
Douglas McCallum
Douglas McCallum
11 months ago

Sad to say, there is precedent for this bill. The SNP pushed through the Scottish Parliament a rightly much criticised Act for Suppression of Free Speech; they of course call it an act to control ‘Hate’ speech. The bill enshrines all the usual woke ideologies but more dangerously it has no accountability. It is the SNP Government which will decide what is allowed, and this will be enforced by criminal prosecutions launched by the State Police. (Separate police forces were abolished by the SNP, together with any pretence of local or accountability, and the new monolithic Police Scotland is wholly answerable to the SNP Government and its appointees.) The Scottish act is recklessly far reaching and ill-defined, and it even criminalises things one might say in the privacy of one’s own home.
If anyone thinks censorship is an idea of the Right – think again! As amply demonstrated in recent years (BLM, trans-fanaticism, vicious ‘cancellation’ of disagreement, CRT, wilful distortion of history, etc.) ideologically-driven people of the Left are currently the leaders in censorship. The SNP (and the Greens) pushed through the Scottish censorship law proudly as a measure of ‘progressiveness’. In the end, only the Scottish Conservatives voted against the bill.

Edward De Beukelaer
Edward De Beukelaer
11 months ago

Maybe we have to keep repeating to the world: power corrupts, POWER CORRUPTS, P O W E R C O R R U P T S …. !!!!! if they will hear this…

David Simpson
David Simpson
10 months ago

and the solution is so simple. Identify everyone who comments on social media, and make it easy to prosecute them for libel, slander, defamation and damages (where eg I lose my job because you started or supported a twitter frenzy). The only duty of the online providers should be to check the identity of the commenter. If that turns out to be duff, make FB, Twitter, whatever liable