It seems the new Government may reopen the can of worms that is the Online Safety Act in a knee-jerk reaction to recent public disorder.

Of course, the Government must examine the root causes of the shocking scenes of violence, as well as prosecuting the perpetrators. But this is not the occasion for throwing ideas at the wall to see what sticks.

Keir Starmer made an astute observation in the first week of the unrest:

The clear message from police and law enforcement is not that they need more powers… [but] to use the existing powers that we’ve got.

Crucially, he stated, “we have to wean ourselves off the idea that the only response is to pass more legislation every time we have a challenge in front of us”

Of course, as the violence continued, the new PM must have felt enormous pressure to be seen to be doing more. And so there are reports that he might ignore his own advice.

One of the first targets is the 2023 Online Safety Act. Some Labour figures are calling for more stringent restrictions on what people can say online. 

London Mayor Sadiq Khan told The Guardian: “I think very swiftly the government has realised there needs to be amendments to the Online Safety Act. I think what the government should do very quickly is check if it is fit for purpose. I think it’s not fit for purpose.”

Labour activist Carol Vorderman, responding to reports that the Act was to be reviewed, said “Good. It was never strong enough”.

As a matter of fact, the Online Safety Act isn’t yet being enforced by Ofcom. So Vorderman and Khan’s analysis is somewhat suspect. 

But the fundamental challenge they face is to justify the apparently draconian limits they appear to want imposed on our online speech.

To be clear: online threats, like offline threats, are already illegal and have been for years. That is why we saw a recent conviction for a Facebook post calling for the burning down of a mosque.    

But those calling for additional regulation of what you and I say online clearly want to go much further and criminalise the content of our opinions. 

It seems likely the push will be to reintroduce limitations on content that is deemed “legal but harmful” for adults. This was a Conservative policy wisely abandoned when Parliament was looking at the Bill but to which Labour, at the time, seemed rather attached.

Some already fear the Online Safety Act goes too far in restricting free speech. But it remains untested. Tinkering with it at this point makes no sense.

Penalising social media giants for letting adults see content that is perfectly legal yet deemed to be “harmful” should send a chill down the spine. It’s simple: If you can legally say it in the street, you should be able to legally say it online. Like “disinformation” or “extremism”, the term “harm” is slippery and subjective language that could lead to damaging limitations on legitimate debate.

For starters, who decides what counts as “harmful”? Under previous plans, it would have been a combination of policymakers, civil servants, Ofcom and, ultimately, social media companies themselves. Perhaps it’s less likely, given recent events, that Starmer will want to entrust this task to Elon Musk. So will the Government give itself the power to decide whether to ban online speech it doesn’t like? Perhaps it would be a job for the Orwellian National Security Online Information Team?

If social media giants are given the job, most of the liberal elites who run them take a different tack to Musk. The general outlook at Facebook and Google perhaps has more in common with Sir Keir’s. But this is a dangerous power to put in their hands.

Those who label opposing political opinions as “harmful”, “misinformation”, “disinformation”, and so on, are playing a dangerous game. It may work for them where the decision-makers are sympathetic to their views, but could easily backfire if the arbiters take an opposing view.

Anyway, giving powers to label our posts in these ways implies omniscience on the part of tech company personnel (and the AI on which they rely) to be able to immediately tell the difference between a true statement and a false one, a harmful statement and a harmless one. 

Imagine if everything you said online was filtered for 100 per cent accuracy. How much of our off-the-cuff bedtime ramblings would pass muster? The reality is that there is a massive amount of selectivity about what counts as “harmful”. Those who hold themselves out as “fact checkers” and “verifiers” have strong personal opinions. They have political goals in the way they scrutinise the opinions of others but masquerade as “neutral” in order to achieve by stealth their objective of countering opinions they don’t like. 

Many questions have already been raised over bias on some platforms. Perfectly lawful viewpoints are shut down because they don’t fit with the woke zeitgeist. Threatening them with massive fines will only increase their zeal to prioritise content that fits their worldview. There was a reason the “legal but harmful” plans were dropped when the Bill was undergoing scrutiny in Parliament. 

About a decade ago, the same “something must be done” approach almost landed us with the ill-fated Extremism Disruption Orders (EDOs). That was also a knee-jerk, sweeping response to violence that would have trampled on harmless free speech while doing little to tackle the real problem.

I wrote at the time, “it is perfectly plausible that comedians, satirists, campaign groups, religious groups, secularist groups, and even journalists could find themselves subject to these draconian measures”. 

Thinking of the then recent shooting at the offices of Charlie Hebdo, I remarked: 

It would be easy to make the case that the distributors of the Charlie Hebdo magazine were ‘spreading hate’ on the grounds of religion. How ironic it would be if extremists could use EDOs to achieve what violence could not — the silencing of criticism of their beliefs.

Then Shadow Home Secretary Andy Burnham MP warned David Cameron:

The PM needs to take care to make sure the measures are not heavy-handed. If he’s not careful, they could have the opposite effect and fuel resentment, division and a sense of victimisation. The government must proceed with the utmost caution and Labour will watch carefully to ensure the correct balance is achieved.

It was evident at that time, as it is now, that free speech was vital to countering dangerous ideas that tempt people towards violence. Starmer must surely know to avoid any form of totalitarian power where speech is limited, because it is in that context that anger abounds. As Rowan Atkinson sagely observes in the viral video of his speech on freedom of expression, “the best way to increase society’s resistance to insulting or offensive speech is to allow a lot more of it”. 

There is already a raft of legislation that can be used to tackle incitement to violence and damage to property. That’s why we’ve seen days on end of arrests and court cases. Sir Keir should stick to his plan to “wean ourselves off” passing more legislation every time there is a challenge in front of us.