Can our new Prime Minister be trusted with free speech and privacy?

As Liz Truss flies to Balmoral tomorrow to meet the Queen, who will ask her to form a government, what can we expect for our free speech and privacy rights?

In a time of crisis, it’s vital that the government protects our democratic right to freedom of expression and privacy. The new Prime Minister has said she is a “believer” in free speech. Truss has pledged to revise the Online Safety Bill so that it does not damage free speech, but it’s not clear what that means Those are hollow words if she decides to quit the very instrument that protects freedom of expression – the European Convention on Human Rights. And it appears to mean nothing regarding the undermining of data protection, which was to be debated on the floor of the Commons today.

Her new government has a massive inbox awaiting it – cost of living, energy, sewage, NHS, strikes, Northern Ireland Protocol, trucks queuing at Dover. The Online Safety Bill is looking like it is slipping down the Parliamentary agenda, and is currently not listed for the completion of the House of Commons Report Stage that was suspended in July.

However, that very large inbox is also a reason why freedom of expression should be top of our agenda. The Internet, social media, chat and messaging services are our main routes to sharing information and calling those in power to account. For many people, they are a lifeline when they cannot pay bills, get healthcare, find products they need or even get clean water. It’s vital that the means of free speech, as well as our rights to speak out, are protected, and it is the government’s duty under law, to do so.

Liz Truss has said that she wants to protect under 18s but adults should speak freely, the same online as offline. She said this is an important principle and she will ensure the Online Safety Bill reflects that. If this is truly a principle she wants to support, she would retain the European Convention on Human Rights and understand how it supports free speech rights online.

Truss has promised to legislate so that the Executive or disproportionate laws cannot be “overruled by the ECHR” through the Bill of Rights; a bill designed to limit individual’s rights. She is widely expected to retain Suella Braverman as a Cabinet Minister, perhaps as Home Secretary or Justice Minister. Braverman has publicly gone further than Truss, calling for the UK actually leave the ECHR.

Her opponent in the contest for leader of the Conservative Party, Rishi Sunak said that “we have a problem with human rights law in this country that is making it difficult to achieve our objectives” indicating that this is an embedded position.

When the Online Safety Bill resumes its Parliamentary journey, it will do so under a government edging ever closer to leaving the European Convention on Human Rights. The government proposes to scrap the Human Rights Act under the British Bill of Rights which is understood to have priority for legislative time this autumn. This Bill has its Second Reading in the House of Commons on 12 September. It will steamroll the rule of law, and among other things will entail a commitment to a more restrictive “freedom of speech” rather than “freedom of expression” and risks minimising the protection afforded by Article 10 of the European Convention (as outlined by Joanna Cherry QC MP in a letter to the Justice Secretary on 30 June 2022).

That’s not good news for free speech nor for privacy, despite the stated intention of Truss to revise the Online Safety Bill ensuring that it does not damage free speech.

We have only heard one concrete proposal, namely that Truss wants to remove the so-called “legal but harmful” provisions in the Online Safety Bill, but only for adults. This is being presented by some as a win for free speech. It isn’t.

The provisions for “legal but harmful” content for children would remain in the Bill. An indicative statement from the current Secretary of State suggests a wide breadth of overlapping requirements that would fall under both “harmful to adults” and “harmful to children”. These overlapping requirements include self-harm, eating disorders, legal suicide, harmful health, online abuse. Only violent and pornographic content would be granted a reprieve. It’s unlikely that this will please many of the Bill’s proponents, and is likely to force widespread age-gating – the use of biometric and AI techniques to estimate the age of a user.

So dumping “harmful to adults” could be a somewhat limp gesture. Moreover, it fails to address the underlying fundamentals of the Bill that require social media platforms, search engines and even encrypted messaging services to implement general monitoring of users’ content, something that was, until recently illegal.

Likewise, the Data Protection and Digital Information Bill, that threatens to gut existing privacy law ( GDPR) was scheduled to have its Second Reading this week.

On the one hand, this Bill can best be described as the digital equivalent of truck queues at Dover. By introducing lower and even conflicting standards of data protection, the DPDIB would inevitably cost the UK their adequacy decision with the European Union, hindering data transfers with the EU and resulting in significant red tape for British businesses. Indeed, digital firms and investors are already running away from the UK following the presentation of this ill-conceived and poorly-written reform.

On the other hand, the DPDIB would unleash data discrimination against workers, children, students, ethnic minorities, vulnerable groups, and everyone else. At a time when the digital economy have shown the potential to weaponise personal data and do harms, UK data protection reforms would roll back protections to the 1980’s standards, hinder the exercise of data rights and access to remedies if something goes wrong.

Furthermore, plans contained in this Bill to give the Government a free pass to invade our private lives, and change the laws arbitrarily and without meaningful democratic scrutiny reveals a troubling lack of political leadership in this field. From the A-level fiasco to the NHS data grab, from Google Deepmind illegal seizure of NHS medical records to the long list of failures in covid programmes, the UK public sector does not need caveats to override the rules and escape routes to avoid scrutiny, but efforts to learn from the mistakes of the past and build capacity over data governance and the safe deployment of digital solutions.

All of this puts free speech and privacy in the UK on a tipping point. If Prime Minister Truss genuinely believes in free speech, she must put strong procedural safeguards into the Online Safety Bill, such as the ability to appeal restrictions and possibility for judicial redress. If she wants to protect privacy, she needs to ditch the Data Bill. Retaining the European Convention on Human Rights is key. It would be shameful for the UK to slide downhill towards Russia and Belarus, on the outside of internationally guaranteed human rights protections.