Legal but harmful: The Online Safety stalemate is still stuck in the trenches
When the government first announced the “legal but harmful” requirement in the online safety bill it wasn’t quite clear who was most offended. From the free speech activists fearful of overzealous regulation, to the tech entrepreneurs wary of burdensome requirements and the human rights lawyers cautious of government overreach, the screams of dissent came from all quarters.
The draft bill envisaged a world in which big tech defines clear terms and conditions for how large companies would address defined “priority categories” for adult online safety, including ‘disinformation’ and ‘hate speech’.
The media regulator Ofcom would then hold Silicon Valley titans to account to meet these conditions and set further priorities. In simple terms, this means a post could be removed from Facebook under rules defined by Meta itself, with extra guidance from the secretary of state.
But with a new government comes a new direction, and the new DCMS head Michelle Donelan has already said changes are likely to be made.
She told Times Radio that her department needs to “make sure we get the balance right” when it comes to free speech, alluding to an expected watering down of the controversial provision.
Ever since the requirement was first introduced, the concern was that there were a number of topics that could be deemed harmful, and therefore be censored by big tech. Where was the line in the sand? Who actually knew how to draw it?
Certainly few trusted Nadine Dorries to skilfully use her crayons with nuance. And the bill would have given whoever sat at the helm of DCMS immense power to direct Ofcom to change codes of practice “for reasons of public policy” and set overarching priorities. For many, it looked like a way to turn the watchdog into a hotbed for the culture wars.
Even former head of child safety online policy at NSPCC turned online safety campaigner Andy Burrows concedes that this was a “legitimate concern” for free speech activists, telling Morning Wire that he would like to see the secretary of state’s powers “trimmed back further” in amendments.
But Burrows is of the view that any u-turn from legal but harmful would be a “retrograde step” for the government, and “picking up the ball and going home”.
In fact, he said the harms defined within the bill are about protecting free expression rather than hindering it, providing transparency of terms and conditions that can be held accountable.
The campaigner told Morning Wire that the provision was even more necessary in a world where censorship for some social media was now at the mercy of “Elon Musk’s whims”.
However, executive director at the Tony Blair Institute for Global Change Sam Sharps told Morning Wire the reality of this transparency was that it puts massive pressure on the shoulders of Ofcom – an independent regulator that has already bitten off more than it can chew.
If the bill is passed, the regulator will be swimming in “unchartered territory”, Sharps said, where if someone is kicked off of Facebook, it suddenly becomes a problem for both Ofcom and the culture secretary – a certain recipe for political backlash.
On top of this, and as Musk’s takeover demonstrates, a huge amount has changed since the draft bill was first introduced in May.
Not only have we seen three prime ministers go in and out of the door of Number 10, but the big tech landscape has also changed dramatically.
The top seven tech firms have lost an estimated $3tn in the year to date, triggering job cuts left right and centre, and the advertising landscape making each quarter more painful than the last for the likes of Google, Meta and Twitter.
The current online safety bill framework is built on what the head of public policy at the IEA Matthew Lesh called a “false hope”, where the assumption is that big tech firms, as well as smaller players like Snap and Pinterest, had more than enough resources to go around.
The harsh reality is perhaps that the rejigging of the online safety bill needs to go further than legal but harmful, and open itself up to the idea that Silicon Valley’s pockets may not be as deep as we first thought.