Last week brought the news that the government is due to remove the “legal but harmful” clause from the Online Safety Bill, a major victory for all the free speech groups that have been campaigning for this. And, as Fraser pointed out yesterday, we should give credit to Rishi Sunak and Culture Secretary Michelle Donelan for having made good on their pledges to look again at this clause.

However, the battle is not over. There is a little-known flaw in the Bill that risks making Nicola Sturgeon the content moderator for the whole of the UK.

I highlighted this flaw in the bill in discussions with Chris Philp, then the Digital Minister, earlier this year — and all credit to Graham Smith, an IT lawyer, for first pointing it out. The definition of illegal content in clause 52 (12) of the bill says the content social media platforms will have a legal duty to remove in every part of the UK will be content that’s illegal in any part of the UK (“offence means any offence under the law of any part of the United Kingdom”). Failure to remove such content could result in those platforms being fined up to 10% of their annual global turnover.

The obvious difficulty with that is it means the big social media companies like YouTube, Facebook and Twitter would have to remove something it’s unlawful to say in Scotland in every part of the UK, effectively appointing Nicola Sturgeon the content moderator for the entire population. That’s a particular concern because last year the Hate Crime and Public Order (Scotland) Act received Royal Assent. Among other things, the Hate Crime Act makes it a criminal offence, punishable by up to seven years in prison, for a person to behave in a threatening or abusive manner or communicate material that is considered threatening or abusive to another person with the intention of “stirring up hatred” against people on the grounds of: age; disability, religion, sexual orientation, transgender identity, or variations in sex characteristics (intersex). 

In effect, if a feminist says in Scotland that she doesn’t think transwomen are women, she could be prosecuted for stirring up hatred. And because of the clause in the Online Safety Bill saying “offence means any offence under the law or any part of the United Kingdom”, the big social media platforms would have to remove any such content across the whole of the UK.

Last July, the government, having been made aware of this problem, tried to address it by making the following amendment:

Clause 52, page 49, line 13, leave out paragraph (d) and insert—

“(d) an offence within subsection (4A).

(4A) An offence is within this subsection if—

(a) it is not a priority offence,

(b) the victim or intended victim of the offence is an individual (or individuals), and

(c) the offence is created by this Act or, before or after this Act is

passed, by—

(i) another Act,

(ii) an Order in Council,

(iii) an order, rules or regulations made under an Act by the Secretary of State or other Minister of the Crown, including such an instrument made jointly with a devolved authority, or

(iv) devolved subordinate legislation made by a devolved authority with the consent of the Secretary of State or other Minister of the Crown.”

I think this will probably mean the Hate Crime and Public Order (Scotland) Act won’t affect what people can and can’t say online in the rest of the UK, since that was passed last year by a devolved authority without the government’s consent. However, the amendment is unsatisfactory because it creates a loophole whereby a future minority Labour government, knowing it wouldn’t get some draconian new anti-free speech law through the House of Commons, could simply approve that law after it’s been passed by Nicola Sturgeon’s government in Holyrood. So Nicola Sturgeon could still become the content moderator for the whole of the UK with the consent of a minority Labour government.

The other difficulty with the amendment is as follows. The Online Safety Bill, as written, will, on the recommendation of the Law Commission of England and Wales, repeal s127 of the Communications Act 2003 (which makes it an offense to say something “grossly offensive”), as well as the Malicious Communications Act 1998, and replace those offences with a new harmful communications offence, whereby it becomes an offence, punishable by up to two years in prison, to say something that causes another person “serious distress”. As you can imagine, I have reservations about the new harmful communications offence. But the critical issue is that the Online Safety Bill will only repeal the above communications offences in England and Wales, not Scotland or Northern Ireland, thereby creating a risk that social media platforms within scope of the new online regulatory regime will not only have to remove content that is unlawful under the new harmful communications offence, but content that’s unlawful under s127 of the Communications Act, since that will remain on the statute books in Scotland and NI, as well as the Malicious Communications Act, since that will remain on the statute book in NI. (It was never applicable to Scotland.)

Does the government’s amendment address that? I don’t think it does. The Malicious Communications Act was passed in 1998, so cannot be disapplied under the amendment, and I think the Communications Act can’t be either, since the Communications (Scotland) Act 2003 applied to the whole of the UK. 

Given there’s a risk Labour will form a minority government supported by the SNP after the next election, the Online Safety Bill, as written, could grant Nicola Sturgeon the power to determine what everyone in the rest of the UK is allowed to say online.

Let’s hope the government does more to address this problem when the Bill comes back.