Reforming the UK Online Safety Bill to Protect Legal Free Expression and Anonymity
The Online Safety Bill’s loose definition of what constitutes “legal but harmful” content, overbroad scope, and general legislative overreach encroach on the civil liberties of all users—not just those in the United Kingdom.
Introduction
The debate about how to moderate online speech has been at the forefront of the world’s online policy discussions. While some policymakers and civil society groups believe that the Internet should remain a bastion of all legal speech—awful or not— or that others believe that the Internet should become a forum with a carefully calibrated balance between online safety, free expression, and privacy. Several nations have aspired to legislate toward a balanced approach to legal free expression and online safety through intermediary liability frameworks such as the United States’ Section 230 of the Communications Decency Act and the European Union’s e-Commerce Directive. But for some proponents of greater online safety, these laws still fail to properly protect adults and children online and promote a digital environment ripe for misinformation.
Through the proposed Online Safety Bill, the British government has decided to take a different approach to content moderation to protect adults and children online. Originally pitched as a white paper in 2019 by the Department for Digital, Culture, Media, and Sport (DCMS) and then as a draft bill in 2021, the Online Safety Bill in its current form imposes a set of obligations—“duties of care”—on online services to monitor and remove various forms of both legal and illegal online content. Services that fail to comply with the new rules face several sanctions, including fines of up to £18 million, or 10 percent of the services’ qualifying worldwide revenue, whichever is higher.
The modus operandi of the bill is to minimize legal but harmful content and mitigate illicit activity without infringing on civil liberties. But as policymakers have seen in other nations, it is impossible to protect both online safety and civil liberties without trade-offs. By not acknowledging the implausible nature of a balance that eradicates legal and illegal online harm while preserving online freedoms, the Online Safety Bill falls into the same proverbial trap as its predecessors.
While well intentioned, the bill’s current approach to online safety is overly broad. The legislation does not clearly define what legal content online services should or should not moderate and creates mechanisms that severely undermine privacy and anonymity on the Internet.
The British government can, however, amend the Online Safety Bill to address these shortcomings. To better protect legal free expression, it should revise the Online Safety Bill to take one of three approaches:
- Amend the bill only to restrict illegal content online and move certain harmful content from the lawful to unlawful category.
- Clearly define specific types of legal and illegal content it requires services to moderate to best position service providers to protect civil liberties such as freedom of speech.
- Codify intermediary liability protections for online services to proactively moderate content.
To better balance anonymity and safety online, it should revise the Online Safety Bill to:
- Remove age assurance or verification recommendations from the proposal and prevent the Office of Communications (Ofcom) from prescribing this technology in the future.
- Protect encrypted communications from the scope of the Online Safety Bill.
Read the report. (PDF)
