UK Government Watch

The Joint Pre-Legislative Scrutiny committee has opened its work into the draft Online Safety Bill. Over the course of their enquiry, one area they must cover -- perhaps as their highest priority -- is the potential for the Bill to be abused as a means of politicising free speech, and your ability to exercise it.

As it has been drafted, the Bill gives sweeping powers to the Secretary of State for Digital, Culture, Media, and Sport, and potentially to the Home Secretary, to make unilateral decisions, at any time they please, as to what forms of subjectively harmful content must be brought into the scope of the bill's content moderation requirements. Shockingly, it allows them to make those decisions for political reasons.

These risks come in Part 2, Chapter 5, Section 33 of the draft, which states (emphasis our own):

(1) The Secretary of State may direct OFCOM to modify a code of practice submitted under section 32(1) where the Secretary of State believes that modifications are required--
(a) to ensure that the code of practice reflects government policy , or
(b) in the case of a code of practice under section 29(1) or (2), for reasons of national security or public safety.(nb this refers to terrorism and csea content)
(2) A direction given under this section--
(a) may not require OFCOM to include in a code of practice provisiion about a particular step recommended to be taken by providers of regulated services, and
(b) must set out the Secretary of State's reasons for requiring modifications (except in a case where the Secretary of State considers that doing so would be against the interests of national security or against the interests of relations with the government of a country outside the United Kingdom).
(3) Where the Secretary of State gives a direction to OFCOM, OFCOM must, as soon as reasonably practicable--
(a) comply with the direction,
(b) submit to the Secretary of State the code of practice modified in accordance with the direction,
(c) submit to the Secretary of State a document containing-- (i) (except in a case mentioned in subsection (2)(b)) details of the direction, and (ii) details about how the code of practice has been revised in response to the direction, and
(d) inform the Secretary of State about modifications that OFCOM have made to the code of practice that are not in response to the direction (if there are any).
(4) The Secretary of State may give OFCOM one or more further directions requiring OFCOM to modify the code of practice for the reasons mentioned in paragraph (a) or (b) of subsection (1), and subsections (2) and (3) apply again in relation to any such further direction.

In other words, a government minister will have the authority to direct an (allegedly) independent regulator to modify the rules of content moderation on topics which are entirely subjective, entirely legal, and entirely political, and to order that regulator to enforce those new rules.

Online services, whether the biggest platform or the smallest startup, in turn, will have no choice but to follow those rules, lest they face potential penalties, fines, and even service blocking.

You don't have to be a policy expert, or a lawyer, to see how these illiberal powers could be misused and abused. We've already provided an example of how this blatant politicisation of the boundaries of free speech could be used to silence public debate on legal topics which the government of the day finds unacceptable, for example, migration . You may have strong opinions on that topic yourself, and you have every right to do so. However, your own ability to discuss that topic is on the table here too.

And as political currents shift and parties trade power, we risk a never-ending war of attrition where the government of the day simply silences topics, opinions, and opposition voices it does not want you to hear.

The political powers over free speech contained in the draft Bill are a rare area where the consensus is universal. Other groups, even those who are strongly in favour of the Bill, are equally uncomfortable with the level of government control over an allegedly independent regulator that has been placed on the table. These voices also include groups outside the UK who are alarmed by the potential these powers have to lower the UK's international standing as a free and democratic nation which upholds the right to freedom of expression.

This chorus should not be ignored. The clauses allowing government to politicise the boundaries of legal free speech have no place in this Bill, or indeed, in any Bill. As the pre-legislative scrutiny committee draws its conclusions, and as the draft Bill approaches its final form, these clauses must be deleted and left in the bin where they belong.

The Information Commissioner's Office (ICO) is set for an overhaul to drive greater innovation and growth in the UK's data sector and better protect the public from major data threats, under planned reforms announced by the Digital Secretary Oliver Dowden.

One year on from the publication of the National Data Strategy, the government has today launched a wide-ranging consultation on proposed changes to the UK's data landscape. As part of this, a new governance model is planned for the ICO, including an independent board and chief executive to mirror the governance structures of other regulators such as the Competition and Markets Authority (CMA), Financial Conduct Authority (FCA) and Ofcom.

This follows the selection of John Edwards as the government's preferred candidate as the new Information Commissioner, who is currently serving as the New Zealand Privacy Commissioner.

Now that we have left the EU, the government wants to create a pro-growth and trusted data regime that unleashes data's power across the economy and society, for the benefit of British citizens and British businesses.

The reforms outlined in this consultation will:

• Cement our position as a science superpower, simplifying data use by researchers and developers of AI and other cutting edge technologies.

• Build on the unprecedented and life-saving use of data to tackle the COVID-19 pandemic.

• Secure the UK's status as a global hub for the free and responsible flow of personal data - complementing our ambitious agenda for new trade deals and data partnerships with some of the world's fastest growing economies.

• Reinforce the responsibility of businesses to keep personal information safe, while empowering them to grow and innovate.

• Ensure that the ICO remains a world-leading regulator, enabling people to use data responsibly to achieve economic and social goals.

As proud members of the LGBTQ+ community, we know first-hand the vile abuse that regularly takes place online. The data is clear; 78% of us have faced anti-LGBTQ+ hate crime or hate speech online in the last 5 years. So we understand why the Government is looking for a solution, but the current version of the Online Safety Bill is not the answer -- it will make things worse not better.

The new law introduces the "duty of care" principle and would give internet companies extensive powers to delete posts that may cause 'harm.' But because the law does not define what it means by 'harm' it could result in perfectly legal speech being removed from the web.

As LGBTQ+ people we have seen what happens when vague rules are put in place to police speech. Marginalised voices are silenced. From historic examples of censors banning LGBTQ+ content to 'protect' the public, to modern day content moderation tools marking innocent LGBTQ+ content as explicit or harmful.

This isn't scaremongering. In 2017, Tumblr's content filtering system marked non-sexual LGBTQ+ content as explicit and blocked it, in 2020 TikTok censored depictions of homosexuality such as two men kissing or holding hands and it reduced the reach of LGBTQ+ posts in some countries, and within the last two months LinkedIn removed a coming out post from a 16-year-old following complaints.

This Bill, as it stands, would provide a legal basis for this censorship. Moreover, its vague wording makes it easy for hate groups to put pressure on Silicon Valley tech companies to remove LGBTQ+ content and would set a worrying international standard.

Growing calls to end anonymity online also pose a danger. Anonymity allows LGBTQ+ people to share their experiences and sexuality while protecting their privacy and many non-binary and transgender people do not hold a form of acceptable ID and could be shut out of social media.

The internet provides a crucial space for our community to share experiences and build relationships. 90% of LGBTQ+ young people say they can be themselves online and 96% say the internet has helped them understand more about their sexual orientation and/or gender identity. This Bill puts the content of these spaces at potential risk.

Racism, homophobia, transphobia, and threats of violence are already illegal. But data shows that when they happen online it is ignored by authorities. After the system for flagging online hate crime was underused by the police, the Home Office stopped including these figures in their annual report all together, leaving us in the dark about the scale of the problem. The government's Bill should focus on this illegal content rather than empowering the censorship of legal speech.

This is why we are calling for "the duty of care", which in the current form of the Online Safety Bill could be used to censor perfectly legal free speech, to be reframed to focus on illegal content, for there to be specific, written, protections for legal LGBTQ+ content online, and for the LGBTQ+ community to be properly consulted throughout the process.

• Stephen Fry , actor, broadcaster, comedian, director, and writer.
• Munroe Bergdorf , model, activist, and writer.
• Peter Tatchell , human rights campaigner.
• Carrie Lyell , Editor-in-Chief of DIVA Magazine.
• James Ball , Global Editor of The Bureau Of Investigative Journalism.
• Jo Corrall , Founder of This is a Vulva.
• Clara Barker , material scientist and Chair of LGBT+ Advisory Group at Oxford University.
• Marc Thompson , Director of The Love Tank and co-founder of PrEPster and BlackOut UK.
• Sade Giliberti , TV presenter, actor, and media personality.
• Fox Fisher , artist, author, filmmaker, and LGBTQIA+ rights advocate.
• Cara English , Head of Public Engagement at Gendered Intelligence, Founder OpenLavs.
• Paula Akpan , journalist, and founder of Black Queer Travel Guide.
• Tom Rasmussen , writer, singer, and drag performer.
• Jamie Wareham , LGBTQ journalist and host of the #QueerAF podcast.
• Crystal Lubrikunt , international drag performer, host, and producer.
• David Robson, Chair of London LGBT+ Forums Network
• Shane ShayShay Konno , drag performer, curator and host of the ShayShay Show, and founder of The Bitten Peach.
• UK Black Pride , Europe's largest celebration for African, Asian, Middle Eastern, Latin America, and Caribbean-heritage LGBTQI+ people.

Ben Greenstone comments on a recent article in the Times commenting on a cross party cartel of powerful parliamentarians all calling for more obtrusive age verification:

The Chairs of both the Draft Online Safety Bill Joint Committee and the DCMS Select Committee, alongside the Shadow DCMS Secretary of State and the Children's Commissioner, are all calling for tougher age verification measures online.

It blows my mind that the piece does not make more of the fact that DCMS tried to introduce age verification for *actual online pornography* and failed because it was too hard. 18 year olds can have a credit card which can be used as a proxy measure... what do 13 year olds have?

This is classic just fix it from people who don't seem to have spent any time actually thinking about what fixing it would look like and what it would require. It's bad news for online service providers, but great news if you are planning to set up an age verification business.

The UK Government has just opened a public consultation on proposals to significantly extend censorship laws for internet TV to match the nannying, burdensome control freakery that currently applies to broadcast TV in the UK. The tone of the press release highlights the obvious glee that the Government holds for more censorship:

Government to consult on better protections for UK audiences on video-on-demand services

Audiences could be better protected from harmful material like misinformation and pseudoscience while watching programmes on video-on-demand services (VoD), Culture Secretary Oliver Dowden has announced.

• Netflix, Amazon Prime Video and Apple TV+ could be subject to stricter rules protecting UK audiences from harmful material
• It would mean audiences - particularly children - receive a consistent level of protection on video-on-demand services as they do on traditional broadcasters
• Ministers seek views to level the regulatory playing field in consultation launched today

The government is considering how to better level the regulatory playing field between mainstream VoD services and traditional broadcasters and is seeking views on the matter in a consultation launched today. This could mean aligning the content standards rules for on-demand TV services with those for traditional linear TV like BBC 1 and Sky.

Now that the UK has left the EU there is an opportunity to create regulation suited to UK viewers that goes beyond the minimum standards as set out in EU regulation under the revised Audiovisual Media Services Directive.

Culture Secretary Oliver Dowden said:

We want to give UK audiences peace of mind that however they watch TV in the digital age, the shows they enjoy are held to the same high standards that British broadcasting is world-renowned for.

It is right that now we have left the EU, we look at introducing proportionate new rules so that UK audiences are protected from harm.

Ofcom data shows a huge growth in popularity and use of on-demand services in the UK. The number of households that subscribe to one rose by almost 350% between 2014 and 2020. In 2021, 75% per cent of UK households say that they have used a subscription VoD service.

Viewers have access to thousands of hours of VoD shows and content at the touch of a button. However, services like Netflix, Amazon Prime Video and Disney+ are not regulated in the UK to the same extent as UK linear TV channels.

For example, except for BBC iPlayer, they are not subject to Ofcom's Broadcasting Code which sets out appropriate standards for content including harmful or offensive material, accuracy, fairness and privacy.

This means there is a gap between existing protections for audiences watching traditional TV and those watching newer VoD services. There are some protections for under-18s but minimal rules exist to regulate content. There are very few rules to protect audiences, for example, from misleading health advice or pseudoscience documentaries.

Some service providers have taken welcome steps to introduce their own standards and procedures for audience protection - such as pin-codes and content warnings - but the extent of these measures varies across services. Age ratings are also inconsistent and sometimes non-existent.

The consultation asks for views on whether UK audiences viewing TV-like VoD programmes should receive the same or similar level of protections as when they are watching traditional television. It asks which measures can and should be made consistent across VoD services.

It will also consider whether mainstream VoD services not currently regulated in the UK by Ofcom - like Netflix and Apple TV+ - should be brought within UK jurisdiction to provide accountability to UK audiences who use them.

Not all VoD providers deliver a TV-like experience, so any regulatory change will need to be proportionate, particularly for smaller or niche services, to ensure essential protections like freedom of speech are not affected.

Notes to Editors

• The consultation is open for 8 weeks and closes on 26 October at 23:45 BST.
• This review into VoD regulation will form part of a number of measures as part of a wide-ranging broadcasting White Paper into the future of broadcasting which will be published this autumn.
• The consultation examines the current level of audience protection from harmful content provided through regulation and voluntarily by individual VoD services, and what steps are required to ensure appropriate protection levels for UK audiences going forward.
• Now the UK has left the European Union, this is an opportunity to improve upon EU aligned provisions under the Audiovisual Media Services Directive with regulations that are designed in the best interests of UK audiences.
• This consultation does not seek responses on wider broadcasting regulation, nor changes to how television or public service broadcasters such as the BBC or Channel 4 are funded or regulated. This consultation will also not cover changes to advertising rules/restrictions and does not cover topics such as introducing levies/quotas on VoD services. Responses on these issues will not be considered as part of this consultation.

Culture Secretary Oliver Dowden has announced that John Edwards is the Government's preferred candidate for Information Commissioner.

John Edwards is currently New Zealand's Privacy Commissioner. He will now appear before MPs on the Digital, Culture, Media and Sport Select Committee for pre-appointment scrutiny on 9th September 2021.

It seems that the Government has its eyes on market opportunities related to selling data rather than data protection. Dowden commented:

Data underpins innovation and the global digital economy, everyday apps and cloud computing systems. It allows businesses to trade, drives international investment, supports law enforcement agencies tackling crime, the delivery of critical public services and health and scientific research.

The government is outlining the first territories with which it will prioritise striking data adequacy partnerships now it has left the EU as the United States, Australia, the Republic of Korea, Singapore, the Dubai International Finance Centre and Colombia. It is also confirming that future partnerships with India, Brazil, Kenya and Indonesia are being prioritised.

Estimates suggest there is as much as £11 billion worth of trade that goes unrealised around the world due to barriers associated with data transfers.

The aim is to move quickly and creatively to develop global partnerships which will make it easier for UK organisations to exchange data with important markets and fast-growing economies. T

The government also today names New Zealand Privacy Commissioner John Edwards as its preferred candidate to be the UK's next Information Commissioner, following a global search.

As Information Commissioner and head of the UK regulator responsible for enforcing data protection law, he will be empowered to go beyond the regulator's traditional role of focusing only on protecting data rights, with a clear mandate to take a balanced approach that promotes further innovation and economic growth.

...

It means reforming our own data laws so that they're based on common sense, not box-ticking. And it means having the leadership in place at the Information Commissioner's Office to pursue a new era of data-driven growth and innovation. John Edwards's vast experience makes him the ideal candidate to ensure data is used responsibly to achieve those goals.

The British Government plans to sweep away inane parts of the EU's data laws in a move that would put an end to pointless web cookie consent banners and red tape.

In the first major regulatory reforms since Brexit, Culture Secretary Oliver Dowden has set out proposals which he says will turbocharge the UK's digital economy and allow data to be used more flexibly.

In particular Dowden signalled the reforms would cut down on cookie banners, used by websites to secure consent for storing personal data when using their websites, arguing that many of them were pointless. The cookie banners achieve little beyond dangerously training internet users to mindlessly tick boxes when asked, just to make the damn things go away.

Ministers also intend to shake up the Information Commissioners Office and have poached John Edwards, New Zealand's current privacy commissioner, to head up the data censor and oversee the new-look regime.

Describing the reforms as the data dividend of Brexit, Dowden said a new British framework would be more proportionate, help cut costs for businesses, and enable greater innovation, which will drive growth and opportunities and jobs.

However, the move risks opening up a fresh schism with the European Commission, which believes GDPR has been highly influential in driving up data privacy standards across the world.

The Law Commission has published recommendations to address the harms arising from online abuse . The recommendations include a coherent set of communications offences to more effectively target harmful communications while increasing protection for freedom of expression.

More than 70% of UK adults have a social media profile and internet users spend over four hours online each day on average. Whilst the online world offers important opportunities to share ideas and engage with one another, it has also increased the scope for abuse and harm. A report by the Alan Turing institute estimates that approximately one third of people in the UK been exposed to online abuse.

The recommendations, which have been laid in Parliament, would reform the "communications offences" found in section 1 of the Malicious Communications Act 1988 ("MCA 1988") and section 127 of the Communications Act 2003 ("CA 2003"). These offences do not provide consistent protection from harm and in some instances disproportionately interfere with freedom of expression.

The reforms would address the harms arising from online abuse by modernising the existing communications offences, ensuring that the law is clearer and that it effectively targets serious harm and criminality. The recommendations aim to do this in a proportionate way in order to protect freedom of expression. They also seek to "future-proof" the law in this area as much as possible by not confining the offences to any particular mode or type of communication.

The need for reform

The laws that govern online abusive behaviour are not working as well as they should. The existing offences are ineffective at criminalising genuinely harmful behaviour and in some instances disproportionately interfere with freedom of expression.

Reliance on vague terms like "grossly offensive" and "indecent" sets the threshold for criminality too low and potentially criminalises some forms of free expression that ought to be protected. For example, consensual sexting between adults could be "indecent", but is not worthy of criminalisation.

Other behaviours such as taking part in pile-on harassment, which can be genuinely harmful and distressing are not adequately criminalised. Additionally, the law does not effectively deal with behaviours such as cyberflashing and encouraging serious self-harm.

The result is that the law as it currently stands over-criminalises in some situations and under-criminalises in others. This is what the Commission's recommendations aim to correct.

Recommendations in detail: The harm-based offence

The Commission is recommending a new offence based on likely psychological harm. This will shift the focus away from the content of a communication (and whether it is indecent or grossly offensive) toward its potentially significant harmful effects. The recommended new harm-based offence would criminalise behaviour if:

• The defendant sends or posts a communication that is likely to cause harm to a likely audience

• in sending or posting the communication, the defendant intends to cause harm to a likely audience

• the defendant sends or posts the communication without reasonable excuse .

Within the offence, harm refers to serious distress. This threshold is one well-known to the criminal law, including in offences in the Protection from Harassment Act 1997. Reasonable excuse would include whether the communication was or was meant as a contribution to a matter of public interest. Media articles would be exempt from the offence.

This new offence could also capture pile-on harassment -- when a number of different individuals send harassing communications to a victim. The fact that the offence is context-specific means it could be applied where a person deliberately joins a pile-on intending to cause harm.

Recommendations in detail: new offences

To complement the harm-based offence, the Law Commission has made recommendations to ensure the law is clearer and protects against a variety of abusive online behaviour.

• Cyberflashing: The Sexual Offences Act 2003 should be amended to include the sending of images or video recordings of genitals, for example, "dick pics" sent via AirDrop.

  • To recognise the violation of a victim's sexual autonomy without their consent, the offence would require either that the defendant intends to cause alarm, distress or humiliation, or if the defendant is acting for a sexual purpose, the defendant is reckless as to whether the victim is caused alarm, distress or humiliation.

• Encouragement or glorification of serious self-harm: An offence to target intentional encouragement or assistance of self-harm at a high threshold (equivalent to grievous bodily harm).

  • The change would ensure that the offence targets the most serious encouragement or assistance of self-harm without unduly criminalising vulnerable people.

• Sending flashing images with intent to induce a seizure : A specific offence for sending flashing images to people with epilepsy with the intention of inducing seizures.

• Knowingly false communications : A defendant would be liable if they knowingly send or post a communication that they know to be false and they intend to cause non-trivial emotional, psychological, or physical harm to the likely audience, without a reasonable excuse.

  • This would raise the threshold for the offence currently in the Communications Act 2003, from knowingly causing "annoyance, inconvenience or needless anxiety" to causing harm.

• Threatening communications : We recommend a specific offence targeting communications that contain threats of serious harm.

  • It would be an offence where the defendant intends the victim to fear the threat will be carried out or the defendant is reckless as to whether the victim fears that the threat will be carried out.

  • The offence defines "serious harm" as including serious injury (equivalent to grievous bodily harm in the Offences Against the Person Act 1861), rape and serious financial harm.

The reforms, if enacted, involve a shift away from prohibited categories of communication (eg "grossly offensive") to focus on the harmful consequences of particular communications. Our aim is to ensure harmful communications are appropriately addressed while providing robust protection for freedom of expression.

Offsite Comment: The Online Safety Bill won’t solve online abuse

 2nd July 2021. See article by Heather Burns

The Online Safety Bill contains threats to freedom of expression, privacy, and commerce which will do nothing to solve online abuse, deal with social media platforms, or make the web a better place to be.

 

Update: House of Lords Committee considers that social media companies are not the best 'arbiters of truth'

21st July 2021. See article from dailymail.co.uk , See report from committees.parliament.uk

A house of Lords committee has warned that the government's plans for new online censorship laws will diminish freedom of speech by making Facebook and Google the arbiters of truth.

The influential Lords Communications and Digital Committee cautioned that legitimate debate is at risk of being stifled by the way major platforms filter out misinformation. Committee chairman Lord Gilbert said:

The benefits of freedom of expression online mustn't be curtailed by companies such as Facebook and Google, too often guided their commercial and political interests than the rights and wellbeing of their users.

The report said:

We are concerned that platforms approaches to misinformation have stifled legitimate debate, including between experts.

Platforms should not seek to be arbiters of truth. Posts should only be removed in exceptional circumstances.

The peers said the government should switch to enforcing existing laws more robustly, and criminalising any serious harms that are not already illegal.

Our Big Brother government is seeking ways for all websites users to be identified and tracked in the name of child protection. But for all the up and coming legislation that demands age verification, there aren't actually any methods yet that satisfy both strict age verification and protect people's personal data from hackers, thieves, scammers, spammers, money grabbing age verification companies, the government, and the provably data abusing social media companies.

The Observer has reported on a face scanning scheme whereby the age verification company claims not to look up your identity via facial recognition and instead just trying and count the wrinkles on your photo.

See article from theguardian.com .

Security expert Alec Muffet has also posted some interesting and relevant background provided to the Observer that somehow did not make the cut.

See article from alecmuffett.com