A harmful approach to harmful content
Tory rebels should think twice
The latest sign of the rebellious mood on the Conservative backbenches is an amendment to the Online Safety Bill. Forty-eight Tory backbenches have are backing jail time for social media company managers who fail to protect children from harmful content.
The road to hell is paved with good intentions
This is a well-meaning idea, but we must not forget that the road to hell is paved with good intentions. This amendment risks supercharging the Bill’s already significant threat to free expression.
Managers would face jail for “any neglect” that leads to a failure to comply with the various child safety duties in the Bill. This idea is conceptually confused. Prison exists to protect us from dangerous criminals – not because a tech company manager has failed to prevent a child from encountering legal but allegedly harmful speech.
Frighteningly for the rule of law, it would be entirely unclear how a manager is meant to comply. The Bill requires platforms to limit harm to children while giving consideration to age, characteristics and group membership (e.g. gender, race, sexuality, nationality, etc). But there is no threshold for “harm” or a list of characteristics under consideration. The Bill defines harm as “physical or psychological harm”. This circular definition could mean pretty much anything while institutionalising the core premise of “cancel culture” – that it is essential to protect people from ideas which cause emotional distress.
In addition, there will be defined categories of “priority harmful content” for children, which must be actively sought and removed. This is expected to rangefrom pornography and content promoting eating disorders to online abuse and harmful health disinformation. The Secretary of State will even have the power to extend the list of priority areas.
Tellingly, digital minister Paul Scully has warned against manager criminal liability. “For a criminal offence, a precise statement of the prohibited behaviour must clearly be set out—in other words, that a particular act or omission constitutes the criminal offence,” Scully said. But, because failure to comply with the children’s safety duties would depend on a multitude of factors, “it may be difficult for individuals to foresee exactly what type of conduct constitutes an offence”. Scully warns that this could “easily lead to unintended consequences and to tech executives taking an over-zealous approach to content take-down for fear of imprisonment”.
In practice, this provision is Legal but Harmful 2.0 – the sections of the Bill previously removed over concerns about freedom of expression. The managers will be forced to proactively censor everyone’s feeds down to what is appropriate for children by default – using cautious automated content removal systems. The only way around this will be to prove your age, through age verification. That is, constantly entering a driver’s licence, passport or credit card. This would not only highly inconvenient, like those cookie pop-ups, but also raise serious privacy concerns.
Importantly, the duties will apply not just to large public sites, but also to private and encrypted user-to-user communications – requiring the scanning of WhatsApp messages. The duties also risk stifling innovation by discouraging start-ups from basing themselves in the UK. Why would anyone want to try competing with Twitter or Facebook when they risk being jailed?
Child protection is an undeniably noble goal. But policymakers need to do more than screech “Ohhh, won’t somebody please think of the children,” like Helen Lovejoy from The Simpsons.
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