A Conservative government that boasts it is a defender of free speech against the attacks of ‘the woke’ is about to impose the severest censorship this country has seen in peacetime since parliament abolished press controls in the 1690s.

In an extraordinary power grab – which is all the more extraordinary for the absence of opposition – ministers want to silence views that carry no criminal penalty. This is more than a much-needed crackdown on racial attacks on black footballers or incitements to violent crime or any other crime; it is an unmerited attack on free speech.

The government’s draft Online Safety bill imposes a ‘duty of care’ on internet companies to remove content that may cause ‘psychological harm’. If they fail to do so, they face crippling fines from the media regulator Ofcom. 

Harm is not properly defined in the bill. Instead it is left hanging as a dangerously fuzzy concept that can be picked by any interest group or pack of heresy hunters that wishes to exploit it.

As Index on Censorship said yesterday in an intervention to alert the public and politicians to the danger, the duty of care model comes from health and safety legislation. It has no place in human rights or the traditional freedoms of this country.

At first instance, the bill would outsource internet policing from the actual police operating under the supervision of the courts and Parliament, to Silicon Valley. These tech firms would have every interest in pre-emptively censoring content as social media companies could face fines of ten per cent of their turnover if they break the regulations.

But the ultimate power will rest with the Ofcom quango, which, as the government’s attempts to impose Paul Dacre as its chair show, is now a highly politicised organisation. (And don’t think it would be any less politicised if my lot were in power.)

The potential exists for the government and Ofcom to decide that ‘harmful’ is whatever harms their political interests and use the law to silence free debate.Can you imagine how lobbyists in the trans debate or any other controversy will use it?

It’s not as if there isn’t enough illegal content online, from child pornography to incitements to racial hatred, to attempts to subvert criminal trials to keep the authorities busy. Tackling it is a hard and urgent task. If there are gaps in the law – and David Davis suggested that we need to legislate against incitements to self-harm – by all means fill them. But instead of putting in the hard work, the government wants sweeping powers to censor legal speech.

Can you imagine how lobbyists in the trans debate or any other controversy will use it? Partisans of every cause will be able to say that they suffer psychological ‘harm’ when they hear arguments they oppose. And no one will be able to prove otherwise, because an outsider can never quantify psychological damage. 

For this reason, the law has shied away from treating mental wounds as the equivalent of physical injuries. A broken leg is tangible. The hurt caused by an argument is subjective. How can you judge it?

The list of principles that the Online Safety bill breaks is long and alarming. The rule of law, most obviously, because the government wants the power to ban and silence people who have committed no offence. […]

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June 26, 2021