UK: House of Lords Must Reject Online Safety Bill

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The Online Safety Bill will enter its next legislative stage in the House of Lords with second reading on 1 February 2023. The Bill, which has already been in the works for several years, continues to raise an unprecedented threat to freedom of expression online. We urge the House of Lords to give the Bill careful consideration and give it the overhaul it needs to comply with human rights standards.

According to the Government, the Online Safety Bill (the Bill) “consistent with the Government’s clear commitment to making the UK the safest place in the world to be online whilst upholding the freedom of expression”. For years, ARTICLE 19 and other human rights organizations have pointed out that the opposite is true: the bill will not make the UK the safest place in the world and it will certainly not protect the freedom of expression and other human rights online.

Despite countless amendments to the bill over the years, the government and the House of Commons have yet to take the necessary steps to bring the bill into line with international human rights standards. On the contrary, the bill has become even more complex and incoherent. Many of the amendments to the bill responded to political concerns at the time without worrying about whether they will actually make the internet safer or protect the human rights of people online. The vast majority of ARTICLE 19’s main concerns with the bill therefore remain. These include bills that focus on censorship instead of addressing the problematic business model of some of the biggest tech companies; outsourcing content legality decisions to private entities; or the requirement to restrict protected speech.

ARTICLE 19 acknowledges that some of the most recent changes have made certain improvements to the bill, such as removing the “lawful but harmful” provision when referring to adults and removing the offense of harmful communication. Despite these recent amendments to the bill, threats to freedom of expression remain.

In addition to the threats we identified in our previous statement, we are particularly concerned about the following issues:

“Legal but Harmful” Clause Replaced by State Enforcement of Terms of Service

In a widely publicized amendment to the bill, the government removed the imposition of a duty of care to protect adult users from “lawful but harmful” content. The mitigations required ranged from removing this content to restricting user access to limiting its recommendation and promotion. Although ARTICLE 19 welcomes this measure, we had warned that the requirement to censor legal speech does not comply with international standards of freedom of expression, this requirement has been replaced by an equally problematic new provision.

Platforms are now required to enforce their terms of use under threat of sanctions from Ofcom (section 65 of the bill). These Terms of Service often go far beyond the restrictions permitted by international human rights standards, allowing companies to censor many categories of lawful speech that they or their advertisers may consider harmful, inappropriate or controversial. In this sense, Ofcom would still have enforcement powers to ensure that ‘lawful but harmful’ speech is restricted, with the sole exception that it is now up to each company to decide which types of lawful speech should be removed in line.

The risk of over-suppression of the protected speech therefore remains in place. Experience shows that companies will want to limit their exposure to liability and generously remove large amounts of legal content if there is any chance that it might violate their terms of service. When their exposure to liability is increased, the incentives for platforms to rely on automated content moderation tools are also increased. Reliance on such tools regularly leads to over-removal of legitimate content, as these technologies are unable to understand nuance and context in users’ speech and correctly identify speech that may be illegal or in violation of the terms of service. use of platforms.

The new sanctions regime increases the risk of censorship

The risk of over-removal of protected expression is further exacerbated by the strengthened sanctions regime in the current version of the bill. Criminal liability has been expanded for senior managers of regulated entities by introducing a prison term of up to two years if they fail to comply with the child protection obligations under the bill. Platforms are needed to mitigate and manage risks related to categories of harm and to prevent children from being confronted with so-called priority content that is harmful to children. These categories will not be defined by Parliament but by the Secretary of State, who will have the power to expand the list without adequate legislative oversight. As we have warned, the threat of criminal liability and the vague concepts and definitions that underpin the child protection obligations under the Bill increase the risk that platforms will rely on automated tools and remove protected speech in a preventive and censored way.

Bill threatens encryption and secure communication

One of the most worrying aspects of the bill remains that, despite strong opposition from civil society groups, Ofcom could require internet services to monitor all user-generated content, including all individual private messages. The bill explicitly gives Ofcom the power to order a provider of a user-to-user service to use accredited technology to identify child sexual exploitation and abuse (CSEA) or terrorist content.

First, the possibility of imposing a general monitoring obligation on service providers contrasts sharply with the approach taken in many other jurisdictions, including the European Union. The latter recognized the dangers that such an obligation poses to human rights online and explicitly prohibited member states in the Digital Services Act from imposing general surveillance.

Second, as noted in our detailed second reading joint submission for the House of Lords, Section 110 also poses a significant threat to encryption. With respect to the identification of CSEA content, Ofcom may require the use of accredited technology, whether such content is communicated publicly or privately. The only way for service providers that offer end-to-end encryption to comply with these obligations would be to remove or weaken encryption by introducing scanning technology on their platforms.

As we acknowledge in our briefing, it is indisputable that the serious human rights issues of the CSEA need to be addressed. However, lawmakers tend to forget that undermining encryption can also pose a threat to children’s rights, including their right to privacy, and expose them to harm. Indeed, a recent report by Child Rights International Network and Defenddigtalme revealed that there are critical ways in which encryption can also protect children from violence, promote their privacy and encourage their expression, including in particular children. marginalized and vulnerable. The UN Committee on the Rights of the Child has also noted that measures to enable the detection and reporting of CSEA content must be “strictly limited in accordance with the principles of legality, necessity and proportionality” and further suggested that systematic and indiscriminate digital surveillance of children may not be necessary and proportionate (CRC/C/GC/25, 2 March 2021, paragraph 70).

It should also suggest that a recent legal opinion commissioned by Index on Censorship concluded that “[t]”Provisions of the Online Safety Bill that would allow state-backed surveillance of private communications contain some of the broadest and most powerful surveillance powers ever offered in a Western democracy.”

Disinformation continues to be criminalized

The list of communication offences, originally proposed in the bill, has also undergone some changes. On the positive side, the “harmful communication offence” which was intended to criminalize sending a message that was likely to cause harm to a likely audience without a reasonable excuse was removed from the bill. What remains, however, is the so-called “tort of false communication” (clause 160 of the bill), which criminalizes sending a message that the sender knows to be false, that the sender has the intent to cause significant psychological or physical harm to a likely audience and for which the sender has no reasonable excuse. Essentially, the bill seeks to criminalize disinformation. If that happened, it wouldn’t just pose a serious threat to free speech in the UK. There is no need to dilute the fact that the UK will join a list of states like Turkey or Tunisia which have recently introduced similar offenses with the intention of limiting civic space and cracking down on dissidents, and that the bill may well help to legitimize the actions of these governments and make it more difficult to advocate against them.

How can the House of Lords protect freedom of expression online?

ARTICLE 19 believes that this problematic bill will not only undermine human rights, but also the digital economy. The obligations imposed on businesses by the bill are likely to stifle competition and innovation in the UK digital market. In fact, the bill will further increase the market share of the very few platforms it is supposed to rule over.

Again, the Bills’ approach contrasts sharply with the approach taken by the European Union in the Digital Services Act and the Digital Markets Act. While these latest regulations could also have been more ambitious, their focus on transparency, procedural rights of users, systemic risk assessments and market conditions is well ahead of the current state of discussions in the UK.

The House of Lords now has the important task of considering the bill. The aspects highlighted here and in our last statement are just some of the many aspects of a bill that remains fundamentally flawed and will fail to keep users safe online. It’s hard to see how anything other than a complete rejection of the bill could save free speech. Given the fundamental importance of adopting an effective and rights-respecting regulatory regime for digital platforms, Peers should not hesitate to take this step. At the very least, we urge them to carefully consider and respond to key concerns repeatedly raised by ARTICLE 19 and other human rights organizations focused on freedom of expression and human rights online.

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