UK government seeks to significantly expand digital thoughtcrime laws

The UK Online Safety bill is seeking to criminalise a whole new raft of online activity and force platforms to censor more.

A press release issued by the Department for Digital, Culture, Media and Sport is paradoxically headlined ‘Online safety law to be strengthened to stamp out illegal content’. Either content is illegal or it isn’t, but the headline implies the law needs to be changed to allow already illegal content to be ‘stamped out’ (whatever that means). It doesn’t make sense.

The reason it doesn’t is that the DCMS has clumsily attempted to euphemise the accurate headline, which would have been: ‘UK government is making more online behaviour illegal’. Since is clearly thinks such a move is a good idea, it’s not clear why the government should be so sheepish about it, but here we are.

Of course the standard, most emotive reasons for restricting freedom in the name of safety are being trotted out. “Our world leading bill will protect children from online abuse and harms, protecting the most vulnerable from accessing harmful content, and ensuring there is no safe space for terrorists to hide online,” said Digital Secretary Nadine Dorries.

“We are listening to MPs, charities and campaigners who have wanted us to strengthen the legislation, and today’s changes mean we will be able to bring the full weight of the law against those who use the internet as a weapon to ruin people’s lives and do so quicker and more effectively.”

‘Use the internet as a weapon to ruin people’s lives’, eh? That’s obviously bad but how do we go about proving a given piece of digital activity has been done with the intention of ruining people’s lives? Dorries reckons she’s cracked this conundrum through the creation of three new types of crime, which are best represented by reproducing their summaries from the press release in full.

This offence is designed to better capture online threats to rape, kill and inflict physical violence or cause people serious financial harm. It addresses limitations with the existing laws which capture ‘menacing’ aspects of the threatening communication but not genuine and serious threatening behaviour.

It will offer better protection for public figures such as MPs, celebrities or footballers who receive extremely harmful messages threatening their safety. It will address coercive and controlling online behaviour and stalking, including, in the context of domestic abuse, threats related to a partner’s finances or threats concerning physical harm. 

This offence will make it easier to prosecute online abusers by abandoning the requirement under the old offences for content to fit within proscribed yet ambiguous categories such as “grossly offensive,” “obscene” or “indecent”. Instead it is based on the intended psychological harm, amounting to at least serious distress, to the person who receives the communication, rather than requiring proof that harm was caused. The new offences will address the technical limitations of the old offences and ensure that harmful communications posted to a likely audience are captured. 

The new offence will consider the context in which the communication was sent. This will better address forms of violence against women and girls, such as communications which may not seem obviously harmful but when looked at in light of a pattern of abuse could cause serious distress. For example, in the instance where a survivor of domestic abuse has fled to a secret location and the abuser sends the individual a picture of their front door or street sign. 

It will better protect people’s right to free expression online. Communications that are offensive but not harmful and communications sent with no intention to cause harm, such as consensual communication between adults, will not be captured. It will have to be proven in court that a defendant sent a communication without any reasonable excuse and did so intending to cause serious distress or worse, with exemptions for communication which contributes to a matter of public interest.

Although there is an existing offence in the Communications Act that captures knowingly false communications, this new offence raises the current threshold of criminality. It covers false communications deliberately sent to inflict harm, such as hoax bomb threats, as opposed to misinformation where people are unaware what they are sending is false or genuinely believe it to be true. For example, if an individual posted on social media encouraging people to inject antiseptic to cure themselves of coronavirus, a court would have to prove that the individual knew this was not true before posting it.

The maximum sentences for each offence will differ. If someone is found guilty of a harm based offence they could go to prison for up to two years, up to 51 weeks for the false communication offence and up to five years for the threatening communications offence. The maximum sentence was six months under the Communications Act and two years under the Malicious Communications Act.

No room for ambiguity or subjective interpretation there, right? These new laws seem like an attempt to both broaden and more loosely-define existing censorship laws to allow much greater powers of prosecution to the police, which seems to spend most of its time trawling the internet for ‘hatespeech’ these days.

Especially chilling are phrases such as ‘intended psychological harm,’ and ‘reasonable excuse,’ although it should be noted the final law does claim to raise the threshold for criminality. Regardless, all three cases essentially amount to thoughtcrime, since they hinge on what was assumed to be going on in the offending head at the time, which is very difficult to prove.

And while we’re in Orwell territory, you almost have to admire the doublethink expressed in the phrase ‘It will better protect people’s right to free expression online’. You can’t have it both ways, Nadine, either you’re criminalising more online speech or you’re not. She is, of course, and that’s just the start as she would also like to criminalise comedy she doesn’t like. As that story indicates, she wants a lot more power to compel internet platforms to censor on the government’s behalf too.

It’s almost like, having lost the court case concerning the quintessentially Orwellian ‘non-crime hate incidents’, the government has simply decided to make them actual crimes instead. There is an argument that libel laws need to be updated for the digital age but the Online Safety Bill feels more like an attempt to smuggle in a raft of broad authoritarian state powers over the online environment in the name of safety. The video below starts at a discussion by the founder of the Free Speech Union of the flaws in this piece of legislation and the precedents it seeks to set.

In related news, the Rogan censorship drama continues to escalate with the circulation of a video compilation of times Rogan uttered a uniquely incendiary word in previous podcasts. This is being used as further evidence of the need for him to be censored and elicited struggle sessions apologies from both Rogan (below) and Spotify boss Daniel Ek.

As an apparent consequence a bunch of historical Rogan podcast episodes have been removed, reportedly at Rogan’s request. The assumption is those are episodes that feature the offending word. Those familiar with Rogan will find it easy to believe his sincerity, while it probably says more about the relationship those that don’t have with authenticity than anything else. Nonetheless this is very unlikely to be the last of it.

Rogan is far too powerful a voice for the establishment to allow him to remain so unconstrained. Evidence has been presented on Twitter alleging the video compilation was disseminated by a political organisation and many powerful people will be pulling out all the stops to ensure this campaign to censor Rogan doesn’t lose momentum. Expect further evidence of Rogan thoughtcrime to spontaneously emerge before long.