• The scope of the Bill is “breathtaking”, and raises significant issues for free speech, privacy and innovation.
• The establishment of safety duties, under the threat of multi-billion pound fines and criminal sanctions, risks digital platforms using automated tools in a cautious and censorious manner. This will embolden bad faith actors to seek content removals.
• The Secretary of State and Ofcom will have unprecedented powers to define and limit speech, with limited parliamentary or judicial oversight.
• The definition of harmful speech can be easily expanded through a statutory instrument, depending on the priorities of the incumbent Secretary of State.  For example, the Shadow DCMS Secretary Lucy Powell clearly envisages an extension of the notion of ‘harmful’ to cover matters of public policy debate, having raised concerns that the Bill would allow ‘climate deniers’ to ‘slip through the net’.
• Privacy risks are raised by encouraging or requiring identity and age verification and proactive monitoring of user content by platforms. The Bill even applies this to private messaging, like WhatsApp.
• The Bill’s byzantine requirements will impose large regulatory costs, particularly on start-ups and smaller companies, and make it riskier to host content and develop innovative services. This risks discouraging investment, and cementing the market position of ‘Big Tech’ companies who can afford to comply.
• The impact assessment estimates that the Bill will cost businesses £2.5 billion over the first ten years, but this underestimates the direct costs (it claims legal fees are just £39.23 per hour) and does not even attempt to assess the potential costs to innovation, competition or international trade.
• There is a lack of evidence to justify the legislation, with respect to both the alleged prevalence of what the Bill treats as ‘harm’ and the link between the proposed measures and the desired objectives.
• The Rt Hon Lord Frost CMG said: “The best thing the Government could do would be to slim down the Bill so they can proceed rapidly with the genuinely uncontroversial aspects, and consign the rest where it belongs – the waste paper basket.”
• Responding to the report, David Davis MP said: “While the Government no doubt has good intentions, in its current form, the Bill could end up being one of the most significant accidental infringements on free speech in modern times.”

A new briefing paper by the Institute of Economic Affairs warns that the Online Safety Bill will have a significant impact on free speech, privacy and innovation. The briefing highlights the broad scope, complexity and reach of the Bill, at over 255 pages, an increase of 110 pages since the May 2021 draft.

Free speech

The briefing paper claims that duties in the Bill will impose unprecedented censorship on lawful speech, through removal of suspected illegal content to ensure compliance and duties in relation to content that is allegedly harmful but not illegal.

Platforms like Facebook, YouTube and Twitter will be expected to take action against speech if they ‘reasonably consider’ it could be illegal, a significantly lower standard then ‘beyond reasonable doubt’. If they fail to do so, the companies can be fined up to 10 per cent of global revenue. The new harms-based communication offence in the Bill outlaws intentionally causing psychological distress. This risks empowering the easily offended and bad faith actors to solicit removals of legal speech from platforms.

The Secretary of State will be able to direct Ofcom to change codes of practice ‘for reasons of public policy’ and will set Ofcom’s priorities. Ofcom, through codes of conduct, will be able to decide what content could be ‘harmful’ and thus set, and therefore potentially limit, the bounds of online free speech. This risks a never-ending expansion of the range of controlled content in response to popular attention.

By contrast, free speech protections are very weak – the Bill only establishes a duty on platforms to ‘have regard’ to the importance of protecting users’ freedom of expression.

Privacy and data security

The Bill’s safety duties require general monitoring of user content using automated tools, which gives rise to serious user privacy concerns. It amounts to a mandate on platforms to actively assess every element of user speech, as per the objectives of the government and Ofcom, including private messages.

Ofcom will also have the explicit power to require scanning of private messages, seriously undermining end-to-end encryption on platforms such as WhatsApp, iMessage, Telegram, and Signal.

The requirement for platforms to undertake age assurance and verification could mean users regularly being required to hand over personal identifying information, e.g. passport details, or driver’s licence, to access websites or being subject to behavioural profiling.

Age verification requirements for pornograpy could result in embarrassment or the blackmail millions of people – a possibility highlighted by how the dating website Ashley Madison data breach resulted in extortion attempts and suicides.

Innovation

The Bill imposes cumbersome duties on more than 25,000 companies including ‘Big Tech’ brands such as Google and Facebook, web forums such as Mumsnet, and collaborative sites like Wikipedia. .

The duties will be disproportionately costly for smaller, challenger firms, undermining competition and innovation. It could replicate the unintended consequences of GDPR, which a recent study concluded led to an 8 per cent reduction in profits for smaller firms while having no effect on the profitability of large technology companies.

The authors warn that imposing immense regulatory burdens on platforms is highly likely to lead to substantial overcompliance or, alternatively, to platforms leaving the UK. This will compromise free speech and privacy or consumer choice. And all this is undertaken in the absence of any convincing evidence of the need for regulation or of there being likely, measurable benefits.

Matthew Lesh, IEA Head of Public Policy and co-author of ‘An Unsafe Bill’, said:

“This Bill is an attack on the fundamentals of a free society. It seriously threatens our ability to communicate and right to privacy, while providing unprecedented regulatory powers to ministers and Ofcom. The government has spoken a lot about wanting to remove burdensome red tape, but first, they should do no harm by not introducing new powers.”

Victoria Hewson, IEA Head of Regulatory Affairs, co-author of ‘An Unsafe Bill’, said:

“There has been a lot of attention on the Bill’s coverage of ‘legal but harmful’ speech, but the duties of care that target illegal content are just as worrying, considering that context and intent are key to such offences, and especially in light of the new speech crimes that the Bill creates. 

“In the offline world, these offences have to be investigated and proven and the courts take protecting freedom of expression seriously. Tech platforms will not have the time or resource to do this and when faced with fines in the millions, will be incentivised to remove content that would not be criminal offline. 

“It is ironic that the government is pursuing this at the same time as it seeks to safeguard free speech in universities. Are we looking at speech being protected on campus, but censored on social media?”

The Rt Hon Lord Frost CMG, former Minister and senior Fellow at Policy Exchange, said:

“The IEA has produced a very important and much-needed report on the highly unsatisfactory Online Safety Bill.

“There is so much wrong with this Bill that it is hard to know where to start, but the report rightly highlights the fact that it will mean some speech that is legal offline will effectively be impossible online. That makes no sense and will be highly damaging to public debate, especially given the weakness of the free speech protections in the Bill.

“Overall the Bill also panders to the view of the perennially offended – those who think the Government should protect them from ever encountering anything they disagree with.  A Conservative Government should not be putting this view into law. 

“The best thing the Government could do would be to slim down the Bill so they can proceed rapidly with the genuinely uncontroversial aspects, and consign the rest where it belongs – the waste paper basket.”

The Rt Hon David Davis, MP for Haltemprice and Howden, said:

“This is a thorough and convincing outline of the many serious problems with the Online Safety Bill. 

“While the Government no doubt has good intentions, in its current form, the Bill could end up being one of the most significant accidental infringements on free speech in modern times.

“The Bill also risks undermining encryption and privacy rights, and will hand several powers to the Secretary of State which will not be subject to adequate parliamentary scrutiny.”

The Rt Hon Dr Liam Fox, MP for North Somerset, said:

“Free Speech is a basic human right, essential for the functioning of democracy and necessary to allow differing views to be contrasted and evaluated in a pluralistic society.  Any restrictions should be exceptional and determined by rigorous tests of necessity and a sense of proportion, otherwise, perfectly well intended actions can have highly damaging unintended consequences.  Any legislation must be tested against these principles.” 

Ruth Smeeth, CEO of Index on Censorship and former Labour MP, said:

“The evidence just keeps mounting showing that the free speech protections in the Online Safety Bill are not worth the paper they’re written on. Silicon Valley has a stranglehold on our freedom of speech, and this bill will give it even more muscle to censor our legal content.

“Cross-party MPs told the government to remove ‘legal but harmful’ because it would have a chilling effect on free speech, but the government has chosen to ignore them and us.

“The implications of the bill also push beyond our borders. At Index on Censorship, we work hard across the world fighting for freedom of expression in some of the most hostile environments. This bill will make it harder for freedom fighters to push back globally.”

Toby Young, General Secretary of the Free Speech Union, said:

“The Online Safety Bill is the greatest threat to free speech in a generation. Matthew Lesh, Victoria Hewson and the IEA have been drawing attention to this for years. It’s about time we started listening.”

Mark Johnson, Legal and Policy Officer at Big Brother Watch, said:

“The Online Safety Bill poses one of the greatest legislative threats to freedom of speech in the UK in living memory. It is vital that policymakers respond to the dangers the Bill poses to our civil liberties, which are clearly set out in this report, as a matter of urgency.”

Notes to editors

IEA spokespeople are available for interview and further comment.

An Unsafe Bill: How the Online Safety Bill threatens free speech, innovation and privacy is under embargo until 00.01 Monday 27 June. An embargoed copy of the paper can be found here: https://iea.org.uk/wp-content/uploads/2022/06/AN-UNSAFE-BILL.pdf

The mission of the Institute of Economic Affairs is to improve understanding of the fundamental institutions of a free society by analysing and expanding the role of markets in solving economic and social problems. The IEA is a registered educational charity and independent of all political parties.