RIGHT TO TYPE How the “Duty of Care” model lacks evidence and will damage free speech Introduction: The Duty of Care puts a fundamental freedom at risk Since the abolition of press licensing in 1695, newspapers in England have been free to print without direct government interference. This principle that the written and spoken word should not be subject to specific censorship by government, rather that a series of laws (from defamation to public order) should apply equally to all, has been the underpinning of our right to free speech. This freedom is in peril. The academic concept that lies behind the government’s draft Online Safety Bill will erode this freedom. With little debate, an abstract concept, the “Duty of Care” has become central to civil service thinking about freedom of expression online. The “Duty of Care” applies notions best applied to health and safety law in the workplace to freedom of speech online. It will reverse the famous maxim, “published and be damned”, to become, “consider the consequences of all speech, or be damned”. It marks a reversal of the burden of proof for free speech that has been a concept in the common law of our country for centuries. Worse of all, this academic concept is about to be applied to the new frontier of free speech, the internet, with little debate or scrutiny through the draft Online Safety Bill. This Bill will fundamentally shift who controls free speech in the UK, from Parliament, to Silicon Valley companies who will be responsible for moderating and censoring content which is, in law, perfectly legal but deemed ‘harmful’. ‘Legal but harmful’ has been defined in the draft Bill as causing “physical or psychological harm”, but how can this be proved? This definition opens up significant problems of subjectivity. The reason, in law, we do not use this definition for public order offenses is that it is hard for citizens to understand how their words (written or spoken) could cause psychological harm in advance, especially on the internet where we do not know our audience in advance. It will be up to Silicon Valley companies to decide the type of free speech that is ‘harmful’ and censor it accordingly. Yet, the notion of ‘legal but harmful’ opens up more questions than it answers. What if my definition of harmful differs from yours? How can Silicon Valley executives adjudicate on issues of taste, or offence, without an understanding of the context of British culture, where comedy and the arts often intend to provoke? 2 Censoring content that is ‘legal but harmful’, is not lawful. It breaches fundamental principles in the common law and our human rights framework. The intention seems to be to sidestep Parliament. Even more problematic is the role of Ofcom as the final adjudicator. For centuries, we’ve enjoyed a judicial not technical process for adjudication over matters of free speech. If you write something that is illegal, you can be held accountable for it. Instead, the draft Online Safety Bill will give Ofcom the powers to fine technology companies for allowing content to be posted that is perfectly legal, but deemed harmful by the subjective standards of the regulator. Ofcom is not entirely shielded from political interference, it is not a flight of fancy to imagine a scenario in which Ofcom could be subject to a push from government to clamp down on free speech that offends the government of the day. The fines that Ofcom can levy are eye-watering, with the potential fines as high as 10% of turnover. For Facebook or Google that would be $8.5 billion1 and $18.2 billion2 respectively. There will be a commercial incentive to over-censor, to remove content once deemed as perfectly acceptable, as to defend free speech online could cause significant financial risk. Ultimately, there is a simple solution that fixes the draft Online Safety Bill: focusing the Bill on content which is illegal under laws passed by parliament. By picking up the policy solutions proposed by the Centre for Policy Studies ‘Safety without Censorship’ report, the government can deliver on its intention to ensure that the most harmful content is removed in a timely manner.3 There is an established legal framework to deal with the majority of the harms considered by the major advocates for the draft Online Safety Bill: from grossly offensive content, to content that promotes hate crimes and terrorism, to online sexual abuse. The application of the laws can be delivered with amendments that limit the scope of the legislation to content that is illegal. By keeping the scope, we can protect free speech, while delivering on the good intentions of the legislation. But, as it stands, the draft Online Safety Bill is too broad, too sweeping and will harm freedom of speech that we have fought so hard as a society to protect. 1 Facebook, ‘Fourth Quarter and Full Year 2020 Results’ (January 2021), https://www.prnewswire.com/news-releases/ facebook-reports-fourth-quarter-and-full-year-2020-results-301216628.html accessed 17 June 2021. 2 Alphabet, ‘Alphabet Announces Fourth Quarter and Fiscal Year 2020 Results’ (February 2021, https://abc.xyz/investor/ static/pdf/2020Q4_alphabet_earnings_release.pdf?cache=9e991fd accessed 17 June 2021. 3 Centre for Policy Studies, ‘Safety Without Censorship: A Better Way To Tackle Online Harms’ (September 2020), https:// www.cps.org.uk/files/reports/original/200926202055-SafetywithoutCensorshipCPSReport.pdf accessed 17 June 2021. 3 Executive Summary • The Duty of Care is a flawed concept based on limited evidence, which would create a radically new framework for the proactive censorship of entirely legal content. • The Duty of Care model’s ‘precautionary principle’ shifts the balance from punishing individuals for breaking the law to state sanctioned private censorship of content for which there has been no judgement whether it is legal or illegal. This shift, as enacted through the Online Safety Bill, would mark the most significant change in the role of the state over free speech since 1695. • The Duty of Care model embedded in the Online Safety Bill will not just impact on the right to publish, but also on the right of UK citizens to receive ideas and information. Previously, the state has had a limited role in determining the content that citizens can receive, with prosecution for content deemed illegal happening after the content has been seen by citizens, Online Harms will give the state the powers to enforce immediate censorship of content that is deemed harmful. • Ultimately, there is no strong evidence base to justify the algorithmic censorship of content which under the common law is perfectly legal. We believe that if it is legal to say or print, you should be free to type it. • There is a significant evidence base that the use of algorithmic censorship will disproportionately impact upon marginalised groups, often the groups of people for whom the ability to publish online is most critical as they have few other platforms. • There are a wide range of existing laws to deal with harmful content, the issue is that there is currently too little police resourcing to deal with the prosecution of illegal content. Where an evidence base exists that there are gaps in the existing legal framework, Parliament should pass or amend laws to deal with these gaps. • The Online Safety Bill will shift decision making over freedom of expression online from Parliament to private Silicon Valley companies, who will not risk fines as high as 10% of their turnover to defend free speech for ordinary British citizens. The risk of over-censorship is significant. • The Online Safety Bill carve outs for journalism and politicians will create two tiers of free speech in the UK. The carve out for journalism is limited in scope and will not prevent the blocking of opinion or investigative journalism by algorithms that deem the content potentially in breach of the Ofcom the content potentially in breach of the Ofcom guidelines. In practice, UK newspapers would need to take heed of Ofcom guidance, or see their content removed from social media platforms. 4 Why will the draft Online Safety Bill and the ‘duty of care’ model erode freedom of speech? 1. The Bill creates a two tier system for freedom of speech that gives greater freedom to politicians and journalists. The two-tier system for content moderation censors the masses, and privileges the elites. The Bill contains specific exemptions for journalistic content and content of ‘democratic importance’ essentially privileging the speech of a select few over the British public. However, even on these terms, the Bill fails to protect online newspapers adequately and the notion that free speech should be treated differently because of who is exercising the right of free speech, is problematic. The Bill attempts to give politicians and journalists additional protections for their free speech. Yet, the ability of ordinary people to speak their mind online has brought about many positive changes such as the #MeToo movement. The Bill could lead to companies removing people’s own experiences as they could be considered ‘harmful’. The voices of ordinary British people are not any less important than those of a select few. Not only are the carve outs unfair, they open up a whole host of other problems. The relevant Minister will have the ability to change the parameters of the carve out at will without consulting Parliament. For example, decisions taken during the Covid-19 pandemic clearly demonstrate the pitfalls of allowing Ministers to take decisions unilaterally. The exemptions for journalism fail to protect the dissemination of content by trusted online news sources through social media networks.