In harm's way: Why online safety regulation needs an Independent Reviewer

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In harm’s way: Why online safety regulation needs an Independent Reviewer

Mikołaj Barczentewicz and Matthew Lesh

3 February 2022

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https://iea.org.uk/wp-content/uploads/2022/01/IEA-_Regulatory-Affairs_In-Harms-Way_web.pdf

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Press release

The draft Online Safety Bill presents a significant threat to freedom of speech, privacy and innovation. ‘Safety’ has been prioritised over freedom. The Bill’s proponents wrongly assume it is possible to remove ‘bad’ content without negatively impacting on the ‘good’ and that platforms, not users, are responsible for ‘harms’.

The Bill’s inclusion of ‘legal but harmful’ speech – along with defining unlawful speech as any content that the platform merely has ‘reasonable grounds to believe’ is unlawful – risks state-mandated automated censorship of lawful online speech. The duties to ‘have regard’ to freedom of expression and privacy are far weaker than the ‘safety’ duties.

The Bill threatens innovation and competition within the UK economy by imposing byzantine duties that will inevitably be harder and more costly for start-ups and smaller companies to comply with, while discouraging companies from operating in the UK, limiting access to online services.

The Bill provides extraordinary discretion to the Secretary of State and Ofcom to design ‘codes of conduct’ that will define ‘legal but harmful’ content. They will also have the power to impose additional requirements such as age verification and undermine end-to-end encryption. The regulator will also have significant leeway about what types of content and which platforms to target.

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 provide some accountability.

The Independent Reviewer would need to be properly resourced and empowered to scrutinise the activities of the Secretary of State and Ofcom and communicate findings to policymakers and the general public.

An Independent Reviewer, properly empowered and resourced, could stand up for freedom of expression, privacy and innovation while being a bulwark against future authoritarian demands.

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Mikołaj Barczentewicz

Mikołaj Barczentewicz is a Senior Lecturer in Law and the Research Director of the Law and Technology Hub at the University of Surrey. He is also a Senior Scholar at the International Center for Law & Economics, a Research Associate of the University of Oxford Centre for Technology and Global Affairs and a Fellow of the Stanford Law School and University of Vienna Transatlantic Technology Law Forum. His research spans technology law and policy, UK and EU public law, and legal philosophy. Mikołaj is a graduate of the University of Oxford, where he obtained his MJur, MPhil, and DPhil degrees, as well as of the University of Warsaw, where he studied law and philosophy.

Matthew Lesh

Matthew Lesh is the IEA's Director of Public Policy and Communications. He regularly appears on television and radio, and has written dozens of opinion and feature pieces for print and online publications such as The Times, The Telegraph and The Spectator. He has provided extensive commentary and written various papers and submissions about the Online Safety Bill. He is also a Fellow of the Adam Smith Institute and Institute of Public Affairs.