With the U.K.'s Conservative Party closing in on deciding who will inherit the mess left by Boris Johnson's tenure as prime minister, that country's governing apparatus will soon get back to the important business of intruding into people's lives.
At the top of the to-do list is the long-coming Online Safety Bill which, as has become traditional for legislation, does nothing that its title suggests. In fact, those who offend the government with their online speech or efforts to protect privacy may soon be a lot less safe.
"If the Online Safety Bill passes, the U.K. government will be able to directly silence user speech, and even imprison those who publish messages that it doesn't like," the Electronic Frontier Foundation's (EFF) Joe Mullin cautioned last week. "The bill empowers the UK's Office of Communications (OFCOM) to levy heavy fines or even block access to sites that offend people. We said last year that those powers raise serious concerns about freedom of expression. Since then, the bill has been amended, and it's gotten worse."
The Online Safety Bill is sold as a measure to protect children from predators and pornography, society from terrorists, and the public from all sorts of vaguely defined "harmful" content that might offend sensibilities, but it takes on that enormous task in an inevitably broad way. Mullin is far from the first civil liberties advocate to warn of the dangers inherent in allowing the British government's regulatory Office of Communication, commonly called Ofcom, sweeping powers over people's use of the internet.
"There are many reasons to be concerned about the #OnlineSafetyBill, the latest manifestation of which has just been launched, to a mixture of fanfares and fury," Paul Bernal, a lecturer at the University of East Anglia Law School, warned in March. "The massive attacks on privacy (including an awful general monitoring requirement) and freedom of speech (most directly through the highly contentious 'legal but harmful' concept) are just the starting point. The likely use of the 'duty of care' demanded of online service providers to limit or even ban both encryption and anonymity, thereby making all of us less—and in particular children—less safe and less free is another. The political control of censorship via Ofcom is in some ways even worse—as is the near certain inability of Ofcom to do the gargantuan tasks being required of it—and that's not even starting on the mammoth and costly bureaucratic burdens being foisted on people operating online services."
That's a lot to worry about packed into a few words. But that's because the Online Safety Bill takes on a vast challenge in trying to make the internet "safe" from a vast array of dangers real, potential, and imaginary. Bernal attributes the overreach to lawmakers' obsessive concern with the online world's flaws. He likens it to a fixation with warts on a human face "and a desire to eradicate them with the strongest of caustic medicine, regardless of the damage to the face itself."
Bernal may be excessively charitable in attributing this massive piece of legislation to an honest misunderstanding of the online world. In June, Jacob Mchangama, founder of the Danish think tank Justitia, noted that the Online Safety Bill is part of a wave of legislation around the world that seeks to control the internet, including the European Union's recently adopted Digital Services Act.
"These regulatory efforts follow in the footsteps of the German Network Enforcement Act of 2017 and oblige online platforms to remove illegal content, including categories such as hate speech and glorification of terrorism, or risk huge fines," Mchangama wrote. "However, in liberal democracies committed to both equality and free expression, this approach raises a number of questions and dilemmas. … Moreover, current hate speech laws have already caused collateral damage to political speech and protests in Europe. Further restrictions risk significantly suffocating pluralism and open debate—the flow of vital oxygen without which democracies cannot thrive."
Notably, the U.K. isn't exactly short of censorship powers even before adopting the Online Safety Bill. Earlier this year, Reason's Scott Shackford highlighted the case of Joseph Kelly of Glasgow, who was criminally convicted for mocking the death of 100-year-old Captain Sir Tom Moore, a military veteran and high-profile fundraiser for the National Health Service. In the United States, under the protections of the First Amendment, such behavior would have earned criticism. In Britain, that drunken tweet brought prosecution and community service in lieu of jail time.
Yet, British lawmakers think they have insufficient power to punish people on the internet.
Like the German Network Enforcement Act (widely known as NetzDG), the Online Safety Bill would offload much of the enforcement burden to social media companies and online services. Under that approach, government bureaucrats slap private companies with stiff fines if they fail to intervene to the government's satisfaction. The EFF's Mullin points out that the bill grants exceptions for "recognized news publishers" and other established media; smaller operators, then, are at the greatest risk of scrutiny and penalties if they guess wrong about officials' opinions of what content promotes terrorism, child abuse, or "psychological harm." That creates an incentive to muzzle more rather than less.
"The Network Enforcement law and its imitators create big incentives for social media companies to overregulate online speech and risk pushing extremists towards platforms that are even harder to survey," Justitia's Mchangama observed in 2020.
"When governments around the world pressure websites to quickly remove content they deem 'terrorist,' it results in censorship," Mullin adds. "The first victims of this type of censorship are usually human rights groups seeking to document abuses and war."
At least for now, the First Amendment shields Americans from similar attempts to control online activity. But North America as a whole isn't entirely immune. When the Online Safety Bill was first introduced last year, Canada's ruling Liberals proposed a similar measure. It died as the government called a general election, which the ruling party (barely) won. The government threatened to reintroduce the legislation, but that plan has been delayed by the inability of experts to agree on what should be regulated and how. Some members of the panel seem concerned about intruding on freedom, while others want private communications controlled, not just public postings.
"The advisory panel tasked with making recommendations for Canada's pending legislation on online safety has failed to come to an agreement on how online harms should be defined, and whether dangerous content should be scrubbed from the internet altogether," the Toronto Star reported July 9.
But an inability to define harmful speech and the legitimate boundaries of regulation didn't stop German and EU lawmakers, and it's not really slowing legislators in the U.K. Canadians are well-advised to look to Britain and Europe to see where their country is likely to go in terms of online government intrusion. The U.K.'s Parliament is expected to resume consideration of the Online Safety Bill this fall. If the measure becomes law, as seems likely, Britons online will be a little less safe.
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