Had it not been for the Tory leadership contest over the summer, a new censorship law would have been passed in Britain by now. The Online Safety Bill included a clause banning content regarded as ‘legal but harmful’ – a dangerously vague phrase that could mean anything that ministers wanted. It would, in effect, have been the end of free speech in the UK. Rishi Sunak said that, if elected, he’d amend the legislation. But this may be only a partial reprieve.

The new text of the Bill has yet to be published. But one mooted compromise is that ‘legal but harmful’ would be removed for adults but still apply to under 18s. The trouble is that this would be almost impossible to implement. In bookshops, newspapers, magazines and more, the British principle has always been one of universal access. So censorship intended at children is likely to affect adults too. The threat would remain.

The MPs who were set to vote for the Online Safety Bill never understood the danger of the ‘legal but harmful’ clause. At present, speech is either legal or it is not. It is illegal, for example, to promote suicide or terrorism and to advertise drugs or weapons. Whether this is attempted on a street corner or on YouTube, it’s against the law. But the difficulty with free speech always comes in the marginal areas, the collateral damage. Hence the danger of entrusting politicians with powers they can’t understand.

The sponsor of the Online Safety Bill, Nadine Dorries, was a perfect example of how it could be abused. As culture secretary she insisted that she was defending free speech, but she made no end of suggestions of what she would like to censor. At one stage, she offered up the jokes of comedian Jimmy Carr as an example of what she considered beyond the pale.

Her predecessor, Oliver Dowden, had enough time to grapple with this Bill to realise its danger. As soon as the concept of ‘legal but harmful’ is made law, censorship will be enacted. The only question is who applies it, how and with what oversight. Dowden saw that Big Tech algorithms were already cracking down on views that challenged the liberal-left Silicon Valley consensus. Big Tech also censored those exploring the idea that Covid was a Wuhan lab leak and attempted to silence scientists scrutinising the logic of lockdowns. The tools of authoritarianism already exist.

The Online Safety Bill would have handed those tools to politicians. The government threat to tech companies’ profits would have ensured that they always erred on the side of censorship: there is no economic benefit to allowing disputed speech but a strong incentive to remove it. Dowden is now back in government, as a minister and valued adviser to Sunak. But if the ‘legal but harmful’ concept remains, even if just for children, then the threat remains.

There are three problems that follow from this. The first is that Silicon Valley itself is quite happy to act as government censor. No money is made from political articles, so social-media, video and search companies are happy to redact and ban anything ministers want – as long as there is no serious threat to the way a handful of companies control the digital public sphere. The old press barons fought censorship tooth and nail. Facebook has taken out adverts in Westminster signalling its willingness to work ‘in partnership’ with government in regulating content – a positively Chinese way of operating.

The second problem is the press themselves. Stung by the loss of advertising revenue, journalists are inclined to support any law that they think will make life difficult for what they see as their digital rivals. At one stage, it looked as if some newspapers would be bought off by a grubby compromise guaranteeing free-speech protection to journalists but not to average citizens. This would have diminished all of society.

The third, and perhaps greatest problem is the ignorance of lawmakers who are unaware of the extent to which digital algorithms control what is spread and read. They would put more power at the fingertips of Nick Clegg, and whoever else controls the algorithms, than was ever wielded by Beaverbrook, Hearst or Murdoch. Once upon a time, readers could pick their newspaper based on which stories appeared on the front page – and those papers were in constant competition to uncover the most intriguing news. Now, Big Tech can hide whatever it wants, making sure readers will never see stories their censors deem unacceptable.

The ease with which the Online Safety Bill has progressed through the Commons has exposed the severity of this final problem: free speech has few parliamentary champions. Even those who robustly defended it outside parliament, such as Boris Johnson, seem strangely reluctant to do the same from the green benches. We like to think of Britain as a country where liberty is cherished. The reality is – and always has been – very different. We will soon see who among the backbenchers will stand up for free speech now.

Every so often, liberty in Britain faces a serious challenge. Free speech has survived because, over the generations, it has been protected by often unlikely champions. It is to Sunak’s credit that he has stuck to his word in redrafting the Bill. But if free speech is to survive under his premiership, the concept of ‘legal but harmful’ needs to be removed in its entirety.

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