UK moves to grant Ofcom and Parliament sweeping online censorship powers

The Online Safety Bill is finally being introduced to Parliament and it seeks to make Ofcom the arbiter of online speech and activity in the UK.

Since it was first proposed in 2019 the bill has gone through many tweaks and amendments, but a consistent aim from the start was to give communications regulator Ofcom a raft of legal powers to impose its will on the internet. The main mechanism for this is a greatly enhanced ability for it to punish internet platforms that don’t do what they’re told.

The head of Ofcom is a government appointee so, in effect, this is a way of granting the UK state dominion over the internet. “…tech firms haven’t been held to account when harm, abuse and criminal behaviour have run riot on their platforms,” said Digital Secretary Nadine Dorries. “Instead they have been left to mark their own homework.”

Well, we can’t have that, can we? Leaving aside the fact that they’re already legally obliged to act against criminal behaviour – there’s a clue in the name – the apparent assumption that the government, via Ofcom, is better qualified to tackle these things than ‘tech firms’ is highly questionable.

“We don’t give it a second’s thought when we buckle our seat belts to protect ourselves when driving,” persisted Dorries. “Given all the risks online, it’s only sensible we ensure similar basic protections for the digital age. If we fail to act, we risk sacrificing the wellbeing and innocence of countless generations of children to the power of unchecked algorithms.”

What a characteristically clumsy and disingenuous analogy. You could apply that logic to any government-imposed restriction and it just serves to emphasise the thin-end-of-the-wedge danger of granting the state powers over the individual. Authoritarians like Dorries will always use such a precedent as a foundation for ratcheting-up their powers in future.

The ‘think of the children’ invocation is inevitable and, given the very legitimate concerns surrounding their safety online, makes it even more regrettable that the government is using such a worthy cause to make legitimate criticism of other proposed laws more difficult and emotionally charged. Nonetheless many people have.

“The Online Safety Bill is set to rip up the rule book as far as traditional British free speech standards are concerned,” said Mark Johnson, Legal and Policy Officer at Big Brother Watch. “This is a censor’s charter that will give state backing to big tech censorship on a scale that we have never seen before.”

Probably the single most egregious stipulation is that internet platforms police ‘legal but harmful’ content as unilaterally determined by Parliament. In other words, even legal stuff can be banned by the government at a moment’s notice. Oh, and if they don’t do what they’re told, Ofcom can fine them 10% of their annual global turnover. Furthermore the regulator is also being given the power to demand data from those platforms and imprison their senior managers for two years if they don’t comply.

“The government’s online safety bill is an incoherent mess that will seriously undermine free speech and privacy,” said Matthew Lesh, Head of Public Policy at the Institute of Economic Affairs. “The continued inclusion of ‘legal but harmful’ speech is a recipe for disaster. Nadine Dorries is wrong to suggest that parliamentary oversight of ‘legal but harmful’ will prevent overzealous removals.

“Big Tech will still be forced to censor legal speech, and take a cautious approach to anything that could potentially be unlawful, or else face massive fines. The planned new communications offences will force platforms to remove speech merely on the suspicion that it could cause psychological harm.

“The Bill will give Ofcom the power to force platforms to use tools to automatically censor speech. Age gating and the ‘porn block’ will undermine user privacy. The Bill also creates extraordinary regulatory burdens on start-ups that will scare away investment and cement the power of Big Tech.

“The focus on criminal sanctions for tech bosses, during a free speech clampdown in Russia, is frankly horrifying. We should be standing proudly for the power of free debate and free societies not introducing totalitarian new laws. The addition of a number of new criminal offences is heralded as a benefit but when the police and courts are already overstretched, is this really a priority for the use of the criminal law?”

“It is a festival of inane, poorly thought out and dangerous ideas,” blogged Jim Killock of the Open Rights Group. “Longer term, it will be fuel for the Putins and other authoritarians, who revel in the prospect of identifying everyone and deciding for themselves what is right and wrong, and will be very pleased that the UK government is taking essentially the same approach.

“Deciding what is ‘legal but harmful’ has proved impossible, so the Bill’s answer is to allow ministers to decide. They have however conceded that this should be rubber stamped by Parliament. This means that the boundaries of online censorship will be politically driven, rather than defined by laws governed by human rights. It will also undermine the ‘independence’ of the new Official Internet Censor, Ofcom, who will be told what needs removing by their political masters.”

“One of the major areas of ambiguity concerning the original draft of the Online Safety Bill was the definition of “legal but harmful” content,” said Ben Packer, Partner at law firm Linklaters. “Today’s confirmation that the Government and Parliament – rather than each platform – will define what is meant by this phrase should remove some of this ambiguity, but will mean that the definition is more static and less able to adapt and respond to emerging areas of harm. It will also mean that there is political involvement in defining the categories of content that the major platforms will have duties to assess and explain how they are being dealt with.”

There’s just so much wrong with this bill. Parliament has barely functioned as a legislative body for the past few years, but we can only hope there will be sufficient opposition from the Tory back benches to mitigate some of the harm this bill will inflict on the country. Labour’s only objection, typically, is that the new restrictions haven’t come quickly enough. and we certainly don’t expect any push-back from Ofcom.

“Today marks an important step towards creating a safer life online for the UK’s children and adults,” said Ofcom boss Dame Melanie Dawes. “Our research shows the need for rules that protect users from serious harm, but which also value the great things about being online, including freedom of expression. We’re looking forward to starting the job.” Note the ‘and adults’ addition.

Censorship is a delicate and nuanced matter. Obviously there needs to be a legal means of protecting vulnerable people from provably harmful online activity, but it should be clearly and absolutely defined. The deliberate introduction of vagueness and subjectivity into those laws is a clear power grab by the UK government. The bill should be scrapped and replaced by a good-faith attempt to introduce clear and robust online guardrails for children and nothing more.

“The rhetoric around the bill seems to be around making children safe, but the entire drive of the proposed legislation is tech sector regulation,” said Professor Andy Phippen, a Fellow of BCS (The Chartered Institute for IT) and a specialist in Ethics and Digital Rights at Bournemouth University. “When I talk to young people about online safety, they usually say they need supportive adults who understand the issues and better education. None have ever demanded that big tech billionaires need to be brought to heel.”