How the Online Safety Bill lets politicians define free speech

The Joint Pre-Legislative Scrutiny committee has opened its work into the draft Online Safety Bill. Over the course of their enquiry, one area they must cover – perhaps as their highest priority – is the potential for the Bill to be abused as a means of politicising free speech, and your ability to exercise it.

As it has been drafted, the Bill gives sweeping powers to the Secretary of State for Digital, Culture, Media, and Sport, and potentially to the Home Secretary, to make unilateral decisions, at any time they please, as to what forms of subjectively harmful content must be brought into the scope of the bill’s content moderation requirements. Shockingly, it allows them to make those decisions for political reasons.

These risks come in Part 2, Chapter 5, Section 33 of the draft, which states (emphasis our own):

(1) The Secretary of State may direct OFCOM to modify a code of practice submitted under section 32(1) where the Secretary of State believes that modifications are required—
(a) to ensure that the code of practice reflects government policy, or
(b) in the case of a code of practice under section 29(1) or (2), for reasons of national security or public safety.(nb this refers to terrorism and csea content)
(2) A direction given under this section—
(a) may not require OFCOM to include in a code of practice provisiion about a particular step recommended to be taken by providers of regulated services, and
(b) must set out the Secretary of State’s reasons for requiring modifications (except in a case where the Secretary of State considers that doing so would be against the interests of national security or against the interests of relations with the government of a country outside the United Kingdom).
(3) Where the Secretary of State gives a direction to OFCOM, OFCOM must, as soon as reasonably practicable—
(a) comply with the direction,
(b) submit to the Secretary of State the code of practice modified in accordance with the direction,
(c) submit to the Secretary of State a document containing— (i) (except in a case mentioned in subsection (2)(b)) details of the direction, and (ii) details about how the code of practice has been revised in response to the direction, and
(d) inform the Secretary of State about modifications that OFCOM have made to the code of practice that are not in response to the direction (if there are any).
(4) The Secretary of State may give OFCOM one or more further directions requiring OFCOM to modify the code of practice for the reasons mentioned in paragraph (a) or (b) of subsection (1), and subsections (2) and (3) apply again in relation to any such further direction.

In other words, a government minister will have the authority to direct an (allegedly) independent regulator to modify the rules of content moderation on topics which are entirely subjective, entirely legal, and entirely political, and to order that regulator to enforce those new rules.

Online services, whether the biggest platform or the smallest startup, in turn, will have no choice but to follow those rules, lest they face potential penalties, fines, and even service blocking.

You don’t have to be a policy expert, or a lawyer, to see how these illiberal powers could be misused and abused. We’ve already provided an example of how this blatant politicisation of the boundaries of free speech could be used to silence public debate on legal topics which the government of the day finds unacceptable, for example, migration. You may have strong opinions on that topic yourself, and you have every right to do so. However, your own ability to discuss that topic is on the table here too.

And as political currents shift and parties trade power, we risk a never-ending war of attrition where the government of the day simply silences topics, opinions, and opposition voices it does not want you to hear.

The political powers over free speech contained in the draft Bill are a rare area where the consensus is universal. Other groups, even those who are strongly in favour of the Bill, are equally uncomfortable with the level of government control over an allegedly independent regulator that has been placed on the table. These voices also include groups outside the UK who are alarmed by the potential these powers have to lower the UK’s international standing as a free and democratic nation which upholds the right to freedom of expression.

This chorus should not be ignored. The clauses allowing government to politicise the boundaries of legal free speech have no place in this Bill, or indeed, in any Bill. As the pre-legislative scrutiny committee draws its conclusions, and as the draft Bill approaches its final form, these clauses must be deleted and left in the bin where they belong.