Monday wasn’t the best day for the government to launch Online Harms, its white paper on internet regulation. As Sajid Javid was proudly proclaiming that Britain would have the toughest internet laws in the world, it emerged that a British woman had been arrested on a trip to Dubai and faced up to two years in prison for describing her ex-husband’s new wife as a ‘horse’ on Facebook. So does the Home Secretary want the UK to have tougher internet laws than the United Arab Emirates? If so, he might find himself at odds with the Foreign Secretary, who has been working behind the scenes to secure the poor woman’s release.
You can see why Javid, one of the front-runners in the Conservative party’s imminent leadership election, thought this would be an easy political win. According to research by Ofcom last year, 79 per cent of UK adult internet users have concerns about going online and the father of Molly Russell, the 14-year-old who committed suicide in 2017 after accessing unsuitable material on Instagram, has been campaigning for laws to purge the internet of harmful content. In addition, the role that ‘disinformation’ and ‘fake news’ played in the EU referendum was highlighted in a recent report by the Department for Media, Culture and Sport select committee. Large social media companies such as Facebook, which owns Instagram, have been given ample opportunity to self-regulate and haven’t got the job done. Isn’t it about time a new sheriff stepped in to tame this Wild West?
But if you read Online Harms it soon becomes clear that it’s very difficult to ‘clean up’ the internet without encroaching on free speech. Like most people, I don’t want social media platforms such as Twitter to be used for sharing child pornography, recruiting Isis terrorists or disseminating fake news manufactured on Russian troll farms. But much of this activity is already illegal under a profusion of recent UK legislation, including the 1986 Public Order Act, the 1988 Malicious Communications Act, the 2000 Terrorism Act, the 2003 Communications Act and the 2006 Terrorism Act.
The new internet regulator proposed by the white paper — I call it iPlod — would not only be given sweeping powers to make sure tech companies are complying with these laws. It would also be able to levy fines of up to 4 per cent of worldwide turnover and jail company directors — and could use this leverage to prohibit speech that is perfectly lawful and which few would object to. The only way to prevent that is to delineate the scope of the regulator very precisely, and Online Harms fails to do that.
For instance, the word ‘harm’ isn’t defined, even though it appears in the title. That’s alarming because the white paper says the new regulator will ban online material ‘that may directly or indirectly cause harm’ even if the content in question is ‘not necessarily illegal’. As an example of what it has in mind, the government singles out ‘offensive material’, as if giving offence is itself a type of harm. In effect, then, iPlod will have the power to prohibit speech which isn’t unlawful but which it believes may indirectly cause harm because it’s offensive. That gives it almost limitless scope to prohibit the expression of opinions which some find disagreeable.
There’s much talk in the document of a ‘right of appeal’, but this turns out to apply to the tech companies only — individual internet users cannot appeal the regulator’s decisions — and would necessitate applying for a judicial review. Not only is that a lengthy and cumbersome procedure, but how could Twitter or Facebook demonstrate that a particular viewpoint won’t under any circumstances cause harm, particularly when ‘harm’ isn’t defined?
Merely showing that it hasn’t caused the complainant any tangible harm won’t be sufficient, since all the regulator will need to show is that it may cause them indirect harm. More or less anything falls into that category, particularly if iPlod can claim that causing offence is a form of harm.
Other undefined terms in the white paper include ‘unacceptable content’, ‘trolling’, ‘intimidation’ and ‘cyberbullying’. Judgments about what forms of lawful speech are ‘unacceptable’ or constitute ‘trolling’, ‘intimidation’ and ‘cyberbullying’ are almost wholly subjective, yet these are all activities that tech executives will be expected to ban on pain of massive fines or imprisonment. It’s a safe bet that they will err on the side of caution — extreme caution, given how high the stakes are.
Joy Hyvarinen, the Index on Censorship’s head of advocacy, says her group is ‘very concerned about the proposals to introduce fines and personal liability for senior executives because this will create a very strong incentive to restrict and remove online content’.
The part of the document concerned with fake news, which the new regulator is also expected to stamp out, is equally woolly. In a section entitled ‘Disinformation’, the white paper says tech companies will ‘need to take proportionate and proactive measures…to minimise the spread of misleading and harmful disinformation and to increase the accessibility of trustworthy and varied news content’. But who’s to say what content is ‘misleading’ and what’s ‘trustworthy’? The document suggests social media platforms should promote ‘authoritative news sources’ and make use of ‘reputable fact-checking services’, but terms like ‘authoritative’ and ‘reputable’ just beg the question. The only thing we know for certain is that fake social media accounts will be explicitly banned, so no more satirical Titania McGraths.
To a great extent, the threat to free speech posed by iPlod will depend upon how its employees exercise their discretion and whether they’re politically neutral. Unfortunately, it will be staffed by the same sort of quangocrats that run the Advertising Standards Authority, the Equalities and Human Rights Commission and Public Health England, and we know from experience that these busybodies will use whatever powers they have to extend the reach of the nanny state. That nearly always involves enforcing left-wing orthodoxy, whether consciously or not. One ominous sign is that the Muslim lobby group Tell Mama is cited in the white paper as a ‘trusted flagger’, with the implication that it will help draft the code of conduct that the regulator will enforce. That doesn’t exactly inspire confidence. In 2014, Tell Mama unsuccessfully tried to sue Charles Moore for challenging the group’s estimates of the rise in Islamophobic hate crimes following the murder of Lee Rigby.
Some newspapers welcomed the publication of Online Harms, presumably because they think it will make life more difficult for Facebook and Google, who’ve been leeching away their readers and ad revenue for years. But it won’t be long before it dawns on them that the proposed regulator will actually entrench the monopolies of these online leviathans. After all, Google and Facebook are jointly worth about $200 billion so they can afford to comply with any pesky new regulations. It’s their less well-resourced competitors who will struggle. Alternatively, the big tech companies can simply reduce their operational footprint in the UK, thereby escaping the new regulator’s jurisdiction.
‘It would be very hard to impose fines on companies like Facebook and Google if they base their operations in the United States since they’ll be protected under the First Amendment,’ says Preston Byrne, a fellow of the Adam Smith Institute and a practicing lawyer in the US. ‘In that scenario, it’s only their British-based rivals that will have a huge compliance bill. That means if you’re an ambitious Oxford graduate who wants to set up a social media company, you won’t do it in England.’
Another reason the British press may sour on this proposal is that the regulations will apply to them, not just Google and Facebook. In the section entitled ‘Companies in scope of the regulatory framework’ it says: ‘The regulatory framework will apply to companies that provide services or tools that allow, enable or facilitate users to share or discover user-generated content, or interact with each other online.’ So that’s any newspaper or magazine with a comment section. They could get around that by scrapping user-generated content altogether, including letters to the editor. But it’s hard to see how that would help them in their battle for eyeballs with the tech giants.
And who’s to say the deputy leader of the Labour party won’t propose an amendment to the internet regulation bill, bringing newspapers and magazines firmly in scope? Tom Watson, who led Labour’s efforts to introduce state regulation of the press in the wake of the Leveson inquiry, welcomed the white paper but claimed it didn’t go far enough. ‘This is a start but it’s a long way from truly reclaiming the web and routing out online harms,’ he said. We all know what comes next. Watson will argue that it would be absurd for Mumsnet to be covered by the regulator, but not the Daily Mail. It was the Mail, after all, that uploaded video footage by the Christchurch shooter, not Mumsnet. If part of the rationale for ‘cleaning up’ the web is to stop that kind of material ending up online it doesn’t make sense for the most visited English-language website in the world to be out of scope. I can hear Watson now: ‘Honourable members, this is a once-in-a-generation opportunity to get the gutter press to act more responsibly when it comes to children and other vulnerable groups and to stop them publishing the smears and lies that poison our democracy. We must seize it with both hands.’
Internet regulation may seem like a good idea — a way to safeguard children and stop the spread of terrorism online. But if it’s based on these proposals, it poses an unprecedented threat to free speech and could easily be used to impose a censorious code of conduct on newspapers and magazines. Sajid Javid was a staunch defender of press freedom as culture secretary from 2014-15 and has a lot of friends in the media as a result. But he needs to look again at these proposals or he’s in danger of losing that good will. As things stand, he’s beginning to look like Tom Watson’s useful idiot.
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