The Online Safety Bill causes more despair as I plough through it. The thing is, I actually want to see a workable law against online harms; but this is not it. It means well and it tries, but whoever wrote it was not up to the task.
I wrote before that the Bill is badly written tortuous, self-contradictory, tautologous and recursive. If this were resolved, it might become legible and so be considered properly. (This could be done by handing it to a half-decent commercial lawyer: they produce water-tight documents that are more complicated in concept every day.)
It cannot even agree with itself on what that key concept, “harm” means: at one point it is “psychological harm amounting to at least serious distress” (Clause 150, about a new offence of “Harmful communications”) and at another it is “physical or psychological harm”, followed by a tangle of subjective provisos (Clause 187).
Part 3 and 4 contain duties of care, which are not actually too bad – impossible day to day for anyone but a major company, but that is whom it is aimed at, and it cuts two ways – protecting vulnerable users, but also protecting free, democratic engagement, and user empowerment. That will be interesting.
The proposed offence of “harmful communication” in Clause 150 should be struck out at once. Nadine Dorries has expressed repeatedly her opposition to the cancel culture and wokeist attacks on free speech, but she is now giving them a perfect weapon. It will make a criminal of anyone who says online anything another person seriously does not want to hear: if a man has built his whole outlook on life through the filter of socialist preconceptions, showing him the folly of those ideas will destroy him, so that will be a crime. Those who built their lives on more personal fantasies, quite fashionable these days, are never reticent about how “harmful” it is to be challenged or doubted.
An important principal is contravened by this Clause: no criminal offence should have indeterminable boundaries based on criteria entirely subjective to the whim of a magistrate or civil servant. No one can then know if he or she is a criminal.
I have more sympathy with the “fake news” offence in Clause 151. It will make crime of many party political materials, but perhaps that is for the best.
The real problems, for all the positives, come from the incoherence and incomprehensibility of the Bill, and how open it is to abuse in the detail of the delegated powers. A real, probable risk is that service providers faced with the illegible duties will ban and bar as a default in order not to be caught. Crippling fines for allowing “harm”, where there is no fine for banning the innocuous, must lead to a supercharging of online cancel culture.
See also
