Photo by Guy Smallman

Pay no attention

In the rush to blame tech companies, we forget the ultimate threat to free speech comes from the state

Artillery Row

There was a flurry of anger following the removal of Novara Media from YouTube. Novara’s Ash Sarkar called it an “attack” by an unaccountable American tech giant, a Labour MP called it “censorship”, while others have declared it “outrageous”. But after just a few hours Novara’s account was restored. A statement from YouTube said that it was “mistakenly taken down”.

It’s not too dissimilar to what happened a few weeks ago when a video uploaded by civil liberties group, Big Brother Watch, involving Conservative MP David Davis, was removed from the platform. Davis, who had been criticising vaccine passports in the video, called it an “unambiguous attempt by YouTube to censor”. But again, it was temporary, and the video was restored.

These events represent a renewed effort by technology companies to limit online speech. It would be easy, as many conservatives do these days, to lay the blame entirely at the feet of progressive Silicon Valley giants. 

This is not happening in a vacuum without state involvement

Indeed, many have introduced more restrictive moderation policies in recent years. There are activist employees pushing against certain content: most recently, Netflix staff protesting against Dave Chapelle. Companies are also facing market pressures from online advertisers, who do not necessarily want their brand associated with certain content, and users and civil society groups, who are constantly reporting posts to the services and demanding tougher action.

But we should remember that this is not happening in a vacuum without state involvement. Across the Western world, governments are pressuring companies to censor content and threatening regulation. That is having a real impact and a chilling effect on free speech.

Last December, for example, TalkRadio’s YouTube account was temporarily shut down by YouTube. This was under Google’s COVID-19 medical misinformation policy and came after earlier strikes against their conduct. It was widely condemned by Conservative ministers, including the then-Cabinet Office minister Michael Gove, who welcomed those who “criticise the government’s position”. 

This is extraordinary and underreported legislation

But in an ironic twist, just a week earlier, the Government’s final response to the Online Harms White Paper pointed to YouTube’s handling of COVID-19 information as a practical example of best practice to tackle disinformation and misinformation. “User safety must be considered when designing the functionality of an online product or service,” the Government paper declared. So the very policy that the Government seemed to support had led to the content removal, albeit accidently, that they later critiqued.

The incentive on companies is to remove questionable content, particularly if there are threats of or actual state action. The Online Harms White Paper has morphed into the draft online safety bill. This is quite an extraordinary and underreported piece of legislation. It will not only threaten the companies with large fines if they fail to address unlawful content, but also “legal but harmful” content. 

This is defined extremely broadly as any “material risk of the content having, or indirectly having, a significant adverse physical or psychological impact on an adult of ordinary sensibilities”. The Bill will require companies to assume all users have any “characteristic (or combination of characteristics)” that could affect the way they view the content. This will make debate about various issues extremely difficult. Discussing trans issues, immigration, or perhaps even satire could cause some people psychological distress, particularly if they have certain characteristics.

This law will empower those who are most shocked by content, or most willing to make a claim that they are distressed, to censor speech that they dislike. If companies fail to address legal speech that could cause psychological harm to the satisfaction of Ofcom, they could face a fine of up to 10 per cent of global revenues. That is an inordinate amount of money — billions and billions of pounds. The clear incentive under this legislation will be to simply remove harmful content in order to avoid massive fines. This will often be done by automated systems, turned up to full blast to avoid the risk of financial penalties.

Companies may be powerful, but they are not all-powerful

With all the focus on criticising these companies, many have lost sight of the fact that the ultimate threat to free speech comes from the state. The companies may be powerful, but they are not all-powerful. There are always more ways to express yourself, even if YouTube or Twitter decide to no longer host your content. There are a plethora of alternative social media platforms. There is traditional mainstream media. You can make your own website or blog. But if you contrast that with the state, there is no alternative. When the state outlaws something, as they are increasingly doing in the speech space, you cannot express it anywhere.

In any case, we should want technology companies competing to address these issues — with respect to harmful content and free speech — not expect the government to instruct them on how to address these issues. The situation is not by any means perfect. Companies are constantly making mistakes. But the alternative is no better: the state telling companies to be more censorious. 

If you seriously care about online free speech issues, your first point of call should be concern over how the state is chipping away at our liberties.

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