HOUSE OF LORDS Communications and Digital Committee 1st Report of Session 2021–22 Free for all? Freedom of expression in the digital age Ordered to be printed 20 July 2021 and published 22 July 2021 Published by the Authority of the House of Lords HL Paper 54 Communications and Digital Committee The Communications and Digital Committee is appointed by the House of Lords in each session “to consider the media, digital and the creative industries and highlight areas of concern to Parliament and the public”. Membership The Members of the Communications and Digital Committee are: Baroness Bull Lord Griffiths of Burry Port Baroness Buscombe Lord Lipsey Viscount Colville of Culross Baroness Rebuck Baroness Featherstone Lord Stevenson of Balmacara Lord Gilbert of Panteg (Chair) Lord Vaizey of Didcot Baroness Grender The Lord Bishop of Worcester Declaration of interests See Appendix 1. A full list of Members’ interests can be found in the Register of Lords’ Interests: https://members.parliament.uk/members/lords/interests/register-of-lords-interests/ Publications All publications of the Committee are available at: https://committees.parliament.uk/committee/170/communications-and-digital-committee/ publications/ Parliament Live Live coverage of debates and public sessions of the Committee’s meetings are available at: http://www.parliamentlive.tv Further information Further information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is available at: http://www.parliament.uk/business/lords Committee staff The staff who worked on this inquiry were Alasdair Love (Clerk), Theo Demolder (Policy Analyst) and Rita Cohen (Committee Operations Officer). Contact details All correspondence should be addressed to the Communications and Digital Committee, Committee Office, House of Lords, London SW1A 0PW. Telephone 020 7219 6076. Email [email protected] Twitter You can follow the Committee on Twitter: @LordsCommsCom. CONTENTS Page Summary 3 Chapter 1: Introduction 5 Table 1: Average minutes per day spent by UK users on websites owned by these companies/publishers 5 Figure 1: Percentage of UK adults who have used social media or video sharing platforms, 2011–20 6 Box 1: Draft Online Safety Bill 7 Box 2: Theories of freedom of expression 8 Chapter 2: Regulating content 12 Moderation by platforms 12 Table 2: Prevalence of harm by age and gender (%) 12 Table 3: Prevalence of harm by age (%) 13 Table 4: Ofcom data on prevalence of harm (%) 13 Proposed safety duties 22 Illegal content 25 Box 3: Relevant criminal offences 25 Protecting children 32 Figure 2: Social media usage by age 33 Box 4: Protections for children in the draft Online Safety Bill 34 ‘Legal but harmful’ content 36 Box 5: Facebook Oversight Board 41 Journalistic content 43 Censorship abroad 45 Chapter 3: Empowering users 48 Platform design 48 Encouraging civility 48 Education 57 Figure 3: UK Digital Civility Index 58 Box 6: The draft Online Safety Bill and media literacy 63 Chapter 4: Promoting choice 64 Figure 4: Social media platforms’ reach in the UK, July 2015 to February 2020 64 Figure 5: Shares of supply by user time spent on social media, July 2015 to February 2020 65 Social media 68 Search engines 71 Draft Online Safety Bill 72 News organisations 75 Online advertising 75 Figure 6: Intermediation in the online advertising market 76 Mandatory bargaining 77 Figure 7: Publishers’ share of visibility of articles about the Duke and Duchess of Sussex, 1 March to 11 March 2021 79 Figure 8: Publishers’ share of visibility of articles about Piers Morgan, 1 March to 11 March 2021 80 Summary of conclusions and recommendations 81 Appendix 1: List of Members and declarations of interests 88 Appendix 2: List of witnesses 90 Appendix 3: Call for Evidence 97 Appendix 4: 10 principles for regulation 101 Appendix 5: Draft Online Safety Bill correspondence with Ministers 102 Appendix 6: Communications and Digital Committee engagement events 110 Evidence is published online at https://committees.parliament.uk/work/745/ freedom-of-expression-online/publications/ and available for inspection at the Parliamentary Archives (020 7219 3074). Q in footnotes refers to a question in oral evidence. Free for all? Freedom of EXpressioN IN the digital age 3 SUMMARY The right to speak one’s mind is a hallmark of free societies. Many people across the world are still deprived of that right, but in the UK it has long been treasured. However, it is not an unfettered right. Civilised societies have legal safeguards to protect those who may be vulnerable. One person’s abuse of their right to freedom of expression can have a chilling effect on others, leaving them less able to express themselves freely. The internet—and particularly social media—provides citizens with an unprecedented ability to share their views. We welcome this and seek to strengthen freedom of expression online. However, the digital public square has been monopolised by a small number of private companies, which are often based outside the UK and whose primary aim is to profit from their users’ data. They are free to ban or censor whoever and whatever they wish, as well as to design their platforms to encourage and amplify certain types of content over others. Too often they are guided by concern for their commercial and political interests rather than the rights and wellbeing of their users. The benefits of freedom of expression must not be curtailed by these companies, whether by their actions or their failures to act. In recent years, the harms users can suffer online have received growing attention. We support the Government’s proposal that, through the draft Online Safety Bill, platforms should be obliged to remove illegal content. Ofcom should hold them to strict timeframes where content is clearly illegal. We also support the Government’s intention to protect children from harm, although the draft Bill is inadequate in this respect–particularly in relation to pornographic websites. Nor are we convinced that the draft Bill sufficiently protects vulnerable adults. These duties should be complemented by an increase in resources for the police to allow them effectively to enforce the law, including on harassment, death threats, incitement, stirring up hatred, and extreme pornography. Platforms should contribute to this increase in resources. The Government also proposes to introduce duties in relation to content which is legal but may be harmful to adults. This is not the right approach. If the Government believes that a type of content is sufficiently harmful, it should be criminalised. For example, we would expect this to include any of the vile racist abuse directed at members of the England football team which is not already illegal. It has no place in our society. The full force of the law must be brought down on the perpetrators urgently. Content which is legal but some may find objectionable should instead be addressed through regulation of the design of platforms, digital citizenship education, and competition regulation. This approach would be more effective, as well as better protecting freedom of expression. Social media platforms do not simply provide users with a neutral means of communicating with one another. The way they are designed shapes what users see, what they say, and how they interact. Platforms’ business models drive them to design services to maximise the time users spend on them, even if this means encouraging their worst instincts. This includes incentivising the posting of outrageous content, content whose reach is then amplified by platforms’ algorithms. The Online Safety Bill should include a robust duty to ensure that powerful platforms make responsible design choices and put users in control 4 Free for all? Freedom of EXpressioN IN the digital age of what content they are shown by giving them an accessible and easy-to-use toolkit of settings, including through third-party applications. Design changes must be complemented by digital citizenship education—both through schools and public information campaigns—to make clear the moral duties to others which come with the right to express oneself freely online and the consequences which the abuse of that right can have, as well as the dangers of retreating into social media echo chambers. Ultimately, people must be given a real choice about the platforms they use. The dominance of companies such as Facebook and Google is such that they have little incentive to put their users’ interests first, as users have little choice to go elsewhere. They have become like utilities. Tougher competition regulation is long overdue. The Government must urgently give the Digital Markets Unit the powers it needs to end the stranglehold of the big technology companies. The rights and preferences of individual people must be at the heart of a new, joined-up regulatory approach, bringing together competition policy, data, design, law enforcement, and the protection of children. The UK has an opportunity to lead the world and set a standard to which fellow democracies can aspire. We must get this right. Free for all? Freedom of expression in the digital age CHapter 1: INTRODUCTION 1. Freedom of expression is the right to express and receive opinions, ideas and information. It is central to our democracy. Accompanying this right are responsibilities held by the Government, by media and technology intermediaries, and by citizens. It is subject to legal limits, such as in the Defamation Act 2013, the Public Order Act 1986, the Protection from Harassment Act 1997 and the Terrorism Act 2006.1 2. Debates and exchanges of information increasingly take place online. Social media platforms in particular have allowed people to publish and share their views with large audiences in a way not previously possible. However, the design of these platforms shapes what is said and what is seen.