Perhaps essentially the most controversial facet of the Online Safety Bill (OSB), one of the vital debated legislative proposals within the UK in recent times, is its impression on freedom of expression.
Liz Truss made clear, in her first look as PM within the House of Commons, that the OSB will probably be making a comeback below her authorities however will probably be “tweaked” due to her need to “make sure free speech is allowed”. So what may these tweaks appear to be? We discover the choices under.
Scrapping duties for content material that’s “legal but harmful” (to adults)
- Duties regarding content material that’s authorized however dangerous to adults (“LBHTA”) might be watered down and even scrapped solely . This seems to be a fairly doubtless change given the brand new Secretary of State for DCMS has stated this a part of the OSB is being “edited”.
- Currently, the OSB imposes duties on Category 1 companies (the biggest and/or highest threat regulated companies) in respect of content material that’s LBHTA.
- Such content material contains “priority” content material to be designated by the Secretary of State (anticipated to incorporate e.g. misinformation and misogynistic abuse), in addition to, extra broadly, content material that presents a “material risk of significant harm to an appreciable number of adults”.
- The duties regarding content material that’s LBHTA don’t require its removing however Category 1 companies must assess the dangers arising from it and clarify of their phrases how every type of precedence content material will probably be “treated” (i.e. whether or not will probably be eliminated, restricted or not moderated in any respect). They are additionally to be sure by “user empowerment duties”, below which they need to give customers the choice to regulate how a lot of the content material that’s LBHTA they encounter on the service and the power to filter out content material from, and interactions with, customers who haven’t verified their identity.
- The OSB contains way more onerous duties in relation to content material that’s authorized however dangerous to youngsters however, unsurprisingly given the Government’s said coverage concentrate on little one security, it has stated these aren’t prone to change.
Changing the edge for unlawful content material judgments
- The Bill’s duties to sort out unlawful content material have sparked a lot much less public debate nevertheless, given the edge set by the OSB (following amendments made by Government in July) for companies to find out whether or not content material needs to be deemed unlawful, there’s a threat that companies searching for to adjust to these duties could also be pressured to over-remove content material with a ensuing antagonistic impression on free speech.
- Services should deal with content material as unlawful the place they’ve “reasonable grounds to infer” that’s the case based mostly on all “reasonably available information”. This is clearly a special, and far decrease, customary to that utilized by the courts for legal offences (i.e. the “beyond reasonable doubt” customary). It can also be completely different to the requirements adopted in different content material regulation regimes, such because the idea of “manifestly illegal” content material utilized in Germany’s NetzDG legislation.
- This means companies could need to deal with content material as unlawful in circumstances the place a courtroom wouldn’t deem the identical content material to quantity to a legal offence, undermining the precept that what’s authorized to say offline, needs to be “legal” on-line. Changing the edge below the OSB for the unlawful content material assessments to be made by companies may due to this fact be one other manner of higher defending free speech.
Strengthening the duties to guard freedom of speech
- The Bill’s optimistic duties to guard freedom of speech are at the moment restricted to:
- an obligation on all companies, when deciding on and implementing content material moderation measures, to “have regard to the importance of protecting users’ right to freedom of expression within the law”; and
- an obligation on Category 1 companies to hold out and publish common assessments of the impression of their content material moderation on freedom of expression and to publicly clarify the steps taken in response to that evaluation.
- There is an apparent rigidity between these duties, that are procedural in nature, and the Bill’s competing “safety duties” to, shield customers from unlawful and dangerous content material, which demand absolute outcomes (e.g. to swiftly take down unlawful content material or stop customers from encountering it). The free speech duties may be glad by taking the procedural steps of getting regard to person rights or finishing up an impression evaluation.
- Another potential free speech pleasant change to the Bill would due to this fact be to strengthen the free speech duties by placing them on extra stage footing with the competing security duties.
Scaling again using proactive monitoring
- The OSB doesn’t exclude obligations to hold out “general monitoring” of companies to establish unlawful content material, a safety that was included within the EU’s e-Commerce Directive and is maintained within the Digital Services Act. In reality, the OSB gives Ofcom with huge powers to direct corporations to make use of know-how to proactively monitor their companies for sure forms of unlawful content material, each by means of regulatory codes relevant to all companies and by issuing notices to particular corporations.
- The goal of a basic monitoring prohibition is to guard in opposition to the over-removal of content material and the ensuing hurt to free speech on-line. There have lengthy been considerations about relying too closely on automated know-how to proactively monitor on-line companies for unlawful and dangerous content material, which may outcome within the blocking of legit content material (for instance, the place the know-how is incapable of assessing context and so can’t distinguish between educational literature and applicable debate about contentious topics and genuinely offensive and dangerous materials). Further safeguards within the OSB in relation to using proactive monitoring know-how are due to this fact prone to be a welcome change for free speech advocates.
Additional protections for personal communications
- Finally, on the face of the Bill, there isn’t any specific distinction in the way in which suppliers are anticipated to deal with non-public and public communications on their companies, together with in relation to their free speech duties. However, customers could effectively count on a better diploma of safety for his or her proper to freedom of expression within the context of personal discussions, reminiscent of one-to-one instantaneous messaging conversations, as in comparison with posts on public boards. While this form of distinction could also be introduced out in Ofcom’s regulatory codes and steerage, it is also an extra free speech safety added to the textual content of the OSB.
As Government legal professionals take a pink pen to the OSB as soon as extra, they’ve the unenviable activity of revisiting the strain at its core. We will probably be intently watching to see how far the free speech “tweaks” will go.