British Government Replaces Online Safety Bill’s ‘Legal but Harmful’ Duties

Britain's Digital, Culture, Media and Sport Secretary Michelle Donelan leaves after attending the first Cabinet meeting under the new Prime Minister Rishi Sunak in 10 Downing Street, in central London, on Oct. 26, 2022. Niklas Halle'n/AFP via Getty Images

The UK government has watered down powers in its legislation regulating online spaces but some free speech advocates still fear the bill is a “censor’s charter.”

On Tuesday, the government announced that “legal but harmful” duties are being replaced in the Online Safety Bill, with culture secretary Michelle Donelan saying they would have “stifled” free speech.

Donelan said that “legal but harmful” duties the legislation would have created a “quasi-legal category.”

However, because the strongest protections in the bill are for children, the government is “in essence” introducing “legal but harmful” provisions for children .

An amendment will force social media platforms to publish their risk assessments on the dangers their sites pose to children.

Furthermore, another amendment will make platforms’ responsibilities to provide age-appropriate protections for children clearer. Where platforms specify a minimum age for users, they will now have to clearly set out and explain in their terms of service the measures they use to enforce this, such as age verification technology.

Unintended Consequences

Donelan told Sky News the bill in its previous form “had a very, very concerning impact potentially on free speech.

“There were unintended consequences associated with it. It was really the anchor that was preventing this Bill from getting off the ground,” she said.

“It was a creation of a quasi-legal category between illegal and legal. That’s not what a government should be doing. It’s confusing. It would create a different kind of set of rules online to offline in the legal sphere,” she added.

Instead, Donelan said that the changes will offer users a “triple shield” of protection when online and that “social media firms will be legally required to remove illegal content, take down material in breach of their own terms of service, and provide adults with greater choice over the content they see and engage with.”

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The legislation will also “instead give adults greater control over online posts they may not wish to see on platforms.”

Donelan added that adults who do not want to see certain types of content—including legal content relating to suicide, self-harm or eating disorders, or content that is abusive, or that incites hatred, on the basis of race, ethnicity, religion, disability, sex, gender reassignment or sexual orientation—will be given access to “user empowerment” tools that will reduce the likelihood of such content appearing on their social media feeds.

Internet companies “will have to offer adults tools to help them avoid” encountering certain types of content such as the glorification of eating disorders, racism, antisemitism or misogyny.

Labour’s shadow culture secretary Lucy Powell told Sky News it was a “major weakening” of the bill.

“Replacing the prevention of harm with an emphasis on free speech undermines the very purpose of this bill, and will embolden abusers, COVID deniers, hoaxers, who will feel encouraged to thrive online,” she said.

Communications Act Offences

The culture secretary also decided to remove the harmful communications offence from the bill as it had “the potential to produce unintended consequences on freedom of expression as they believe it would criminalise legal and legitimate speech on the basis that it has caused someone offence.”

However, the government said that in retaining protections for victims of abuse, it will no longer repeal elements of the Malicious Communications Act and Section 127 of the Communications Act offences.

Professor Andrew Tettenborn, common law and continental jurisdictions scholar and advisor to the Free Speech Union (FSU), told The Epoch Times that this was “what the really worrying thing is.”

Section 127 of the act makes it a crime in the UK to post anything “grossly offensive” on a ‘communications system.

People who have been caught out by this law include the YouTuber and comedian Markus Meechan, aka Count Dankula who, in May 2016, was found guilty of breaching the act when he uploaded a “grossly offensive” video to YouTube in which he taught his girlfriend’s pug to perform a Nazi salute for a joke.

“We were going to get rid of it as recommended by the Law Commission but the government appears to have cold feet,” said Tettenborn.

“My feeling is that this needs resisting hard,” added Tettenborn.

“I think [the Online Safety Bill] it’s more of a censor’s charter than it should be. And I'd still say actually it’s unnecessary,” he added.

A Hostage to Fortune

The Free Speech Union has been lobbying the government about the impacts of the bill on freedom of expression.

FSU founder Toby Young wrote in The Spectator that the new version of “the Online Safety Bill seems, on the face of it, to be an improvement on the previous one” but that “the devil will be in the detail.”

“Another objection to the previous version is that, according to its provisions, the list of legal content that was harmful to adults was going to be included in a statutory instrument and not in the bill itself,” a Free Speech Union spokesman told The Epoch Times by email.

“One concern free speech groups had is that after this list had been drawn up it could easily be added to by another statutory instrument, whether by this government or the next, creating an anti-free speech ratchet effect,” he said.

“That would have been a hostage to fortune,” he added.

That list includes “legal content relating to suicide, self-harm or eating disorders, or content that is abusive, or that incites hatred, on the basis of race, ethnicity, religion, disability, sex, gender reassignment or sexual orientation.”

The FSU still had major concerns. For instance, on the “user empowerment” model, he said that “there’s a significant risk that the big providers (Facebook, Twitter, YouTube) will make the ‘safe’ mode their default setting, so if adult users want to see ‘lawful but awful’ content they will have to ‘opt in.’”

“That may mean people posting some politically contentious views—saying trans women aren’t women, for instance—will be blocked by default since woke identity groups will argue that those views constitute abuse or incitement to hatred based on their protected characteristics,” he added.

“Users will have the option of adjusting their settings so they can see that content, but some won’t be aware of that, or they will but won’t know how, or they won’t want to in case someone sees something ‘hateful’ over their shoulder in the workplace,” said the FSU.

State–Big Tech Collaboration

Alan Miller, co-founder of Together Declaration, has campaigned to challenge the bill.

His organisation was formed in 2021 in response to COVID-19 measures with the mission to “push back against the rapidly growing infringements on our rights and freedoms.”

“The new online safety bill, after many campaigners and some MPs challenged the attempt to prevent legal speech, has a couple of things that are important,” Miller told The Epoch Times in an email.

“No longer can ‘harmful’ legal speech be targeted—in theory. However, key rules, or ‘community guidelines’ are now to be policed within the terms and conditions of Big Tech,” he said.

“This means that the state and big tech are ever further combining. Unequivocal free speech is not the order of the day,” he said.

“Think about Ofcom-regulated broadcasters deplatformed on YouTube for breaching their rules on so-called ’medical misinformation' over last couple of years or views about biology and gender,” said Miller.

“We’ve seen far too many takedowns and now the ’terms and conditions’ that are in place to benefit Big Tech will be the prevailing authority. This is a big problem for anyone committed to free speech. While we are happy that so many challenged the draconian online Safety Bill, we will need to continue the fight for open debate and free speech online and off, together,” he added.

The Epoch Times contacted the UK government for comment.

PA Media contributed to this report.