Independent Reviewer needed to prevent government censorship of online speech, argues new IEA paper

• The draft Online Safety Bill presents a significant threat to freedom of speech, privacy and innovation.
  
  


• The Bill’s inclusion of ‘legal but harmful speech’ risks state-mandated automated censorship of lawful online speech.
  
  


• The draft legislation hands extraordinary discretion to the Secretary of State and Ofcom to design ‘codes of conduct’ that will define what content is deemed ‘legal but harmful’.
  
  


• If the government is unwilling to fundamentally rewrite the Bill, there is a clear need for serious, independent scrutiny mechanisms to prevent regulatory and ministerial overreach.
  
  


• An Independent Reviewer of Online Safety Legislation, modelled partly on the Independent Reviewer of Terrorism legislation, could stand up for freedom of expression, privacy and innovation, and act as a bulwark against future authoritarian demands.
  
  A new report, In Harm’s Way: Why online safety legislation needs an Independent Reviewer, published by the Institute of Economic Affairs (IEA), argues that the draft Online Safety Bill prioritises vague notions of ‘safety’ over freedom, privacy and innovation – and would in practice require censorship of online speech that would be lawful offline.

The inclusion of ‘legal but harmful’ speech in the Bill – along with defining unlawful speech as any content that the platform merely has ‘reasonable grounds to believe’ is unlawful – could lead to a draconian clamp down on speech online. Further, the duties to ‘have regard’ to freedom of expression and privacy are far weaker than the ‘safety’ duties.

The draft legislation also threatens innovation and competition within the UK digital economy. It imposes byzantine duties that will inevitably be harder and more costly for startups and smaller companies to comply with. This risks discouraging companies from operating in the UK, which could limit access to online services.

Authors Matthew Lesh and Mikolaj Barczentewicz highlight the extraordinary discretion the Bill hands to the Secretary of State and Ofcom to design ‘codes of conduct’ that will define ‘legal but harmful content’. This includes the power to impose additional requirements such as age verification and undermine end-end encryption. The regulator will also have significant leeway to discriminate when it comes to types of content and which platforms it targets.

If the Bill cannot be scrapped altogether, the authors propose several institutional safeguards that could be included in the legislation. Specifically, the paper makes the case for the creation of a new position of the Independent Reviewer of Online Safety Legislation, modelled partly on the Independent Reviewer of Terrorism Legislation. If properly empowered and resourced, it could stand up for freedom of expression, privacy and innovation while acting as a bulwark against future authoritarian demands.

The report suggests additional changes that policymakers could make to improve the Bill, including to:

• Remove ‘legal but harmful’ content from the scope of content included in the Online Safety Bill, and if not, narrowly define ‘harm’ in primary legislation.


• Mandate Ofcom to protect freedom expression in their activities and provide independent appeal mechanisms against the regulator’s actions.
  
  


• Remove private messaging or age verification from scope of legislation.
  
  Matthew Lesh, report author and Head of Public Policy at the Institute of Economic Affairs, said:

‘The draft Online Safety Bill represents a drastic threat to freedom of expression. It will force companies to censor legal speech while placing extraordinary regulatory burdens on thousands of startups. Worryingly, ministers and Ofcom will have unprecedented powers to decide what we are allowed to see online.

‘If the government is unwilling to abandon the draconian proposals, the least they can do is ensure proper scrutiny and oversight. An independent reviewer – inspired by Independent Reviewer of Terrorism Legislation – could provide an important bulwark against regulatory overreach.’

Mikołaj Barczentewicz, report author and Senior Lecturer in Law and Research Director of the Law and Technology Hub at the University of Surrey, said:

“There is a need for effective and independent oversight of the new online safety regime, because of the very real risks it poses to the freedom of speech and to innovation.

We argue that the new office of the Independent Reviewer of Online Safety Legislation will perform that job far more effectively than a parliamentary committee.”

Toby Young, General Secretary of the Free Speech Union, said:

“The Online Safety Bill poses a grave threat to free speech and is in urgent need of revision. The IEA is right to call for a strengthening of free speech protections – an independent reviewer would help defend against state censorship.”


Jim Killock, Executive Director of the Open Rights Group, said:

“The Online Safety Bill is a fundamentally flawed approach to regulating online content. This is a reasonable attempt to apply increased scrutiny to deal with the consequences of a bad bill, but the best way forward would be a complete rethink.”