UK Internet Censorship

The UK Government's 'Online Harms' plans will lead to sweeping online censorship unprecedented in a democracy. Some of the harms the plans describe are vague, like unacceptable content and disinformation. The new regulations will prohibit material that may directly or indirectly cause harm even if it is not necessarily illegal.

In other words, the regulator will be empowered to censor lawful content, a huge infringement on our freedoms. The White Paper singled out offensive material, as if giving offense is a harm the public need protection from by the state. In fact, the White Paper does not properly define harm or hate speech, but empowers a future regulator to do so. Failure to define harm means the definition may be outsourced to the most vocal activists who see in the new regulator a chance to ban opinions they don't like.

The government claims its proposals are inspired by Germany's 2017 NetzDG law. But Human Rights Watch has said the law turns private companies into overzealous censors and called on Germany to scrap it. NetzDG's other fans include President Lukashenko of Belarus, who cited it to justify a 2017 clampdown on dissent. Vladimir Putin's United Russia Party cited NetzDG as the model for its internet law. So did Venezuela. Chillingly, the plans bear a striking similarity to some of Beijing's internet censorship policies. The Cyberspace Administration of China censors rumours because they cause social harms.

Reform of the law is needed to protect victims from harmful online behaviour including abusive messages, cyber-flashing, pile-on harassment, and the malicious sharing of information known to be false. The Law Commission is consulting on proposals to improve the protection afforded to victims by the criminal law, while at the same time provide better safeguards for freedom of expression.

In our Consultation Paper launched on 11 September 2020, we make a number of proposals for reform to ensure that the law is clearer and effectively targets serious harm and criminality arising from online abuse. This is balanced with the need to better protect the right to freedom of expression.

The proposals include:

• A new offence to replace the communications offences (the Malicious Communications Act 1988 (MCA 1988) and the Communications Act 2003 (CA 2003)), to criminalise behaviour where a communication would likely cause harm.

  • This would cover emails, social media posts and WhatsApp messages, in addition to pile-on harassment (when a number of different individuals send harassing communications to a victim).

  • This would include communication sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the CA 2003.

  • The proposals include introduction of the requirement of proof of likely harm. Currently, neither proof of likely harm nor proof of actual harm are required under the existing communications offences.

• Cyber-flashing -- the unsolicited sending of images or video recordings of one's genitals -- should be included as a sexual offence under section 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available.

• Raising the threshold for false communications so that it would only be an offence if the defendant knows the post is false, they are intending to cause non-trivial emotional, psychological, or physical harm, and if they have no excuse.

The consultation period will run until 18 December 2020.

Ofcom commissioned research has identified (but not named) 2 adult video sharing sharing platforms that are based in the UK. It will be interesting to see how age verification requirements will effect these UK services trying to compete with the rest of world with no such requirements (for the moment).

Ofcom writes:

We are seeking evidence and information related to the new requirements that will apply to video-sharing platforms.

Video-sharing platforms (VSPs) are a type of online video service where users can upload and share videos. VSPs allow users to engage with a wide range of content and social features and are particularly popular among young people. 90% of adults and 98% of children aged 8-15 who use the internet have used a VSP in the past year.

Ofcom will be given new powers this autumn to regulate UK-established VSPs. This will include a duty to ensure that VSPs have in place appropriate measures to protect young people from potentially harmful content and all users from illegal content and incitement to hatred and violence. Services will also need to ensure standards around advertising are met.

This call for evidence sets out the background and legislative context to forthcoming VSP regulation in the UK and an overview of the VSP regulatory framework. It also sets out Ofcom's approach to VSP regulation based around some core principles: protection and assurance; freedom of expression; adaptability; transparency; enforcement; independence; and proportionality.

Up until now, the UK government has always indicated that newspaper websites would not be caught up in the new internet censorship regime proposed in the Government's Online Harms white paper.

However it now seems that the government has backtracked lest every websites claims to be a news service.

The Daily Mail reports that Julian Knight, chairman of the Commons Digital, Culture, Media and Sport Committee, has written to Culture Minister John Whittingdale over the proposed laws, after Home Office lawyers claimed that granting a publishers exemption' would create loopholes. One source close to the ministerial arguments over the proposed laws said:

Government lawyers are arguing that the publishers exemption would allow just anyone to claim it, so for instance you would have The Isis Times being able to distribute beheading videos.

The Tory MP Julian Knight told Whittingdale that Ministers in both DCMS and the Home Office should resolve the impasse by allowing an exemption for authenticated and reliable news sources.

The Government has yet to respond, amid concerns that any action may be delayed by wrangling over legislation to stop harmful online material and fears that antagonising powerful American-owned online platforms might jeopardise post-Brexit trade talks with the US.

Former culture secretary Jeremy Wright is setting up a parliamentary group (All party parliamentary group, APPG) to campaign for internet censorship

Wright, who drew up the Government's white paper proposing strict sanctions on tech platforms who fail to protect users under a duty of care is particularly calling for censorship powers to block, ban, fine or restrict apps and websites considered undesirable by the proposed internet censor, Ofcom. Wright said:

There needs to be a lot more clubs in the bag for the regulator than just fines, he said. I do think we need to consider criminal liability for individual (tech company) directors where it can be demonstrated.

He also felt the regulator should have powers of ISP blocking, which effectively bar an app from the UK, in cases of companies repeatedly and egregiously refusing to comply with censorship rules.  He said:

I do accept the chances of WhatsApp being turned off are remote. Although frankly, there may be circumstances where that may be the right thing to do and we shouldn't take it off the table.

Wright is founding the APPG alongside crossbench peer and children's digital rights campaigner Beeban Kidron, and the group has already attracted supporters, including three other former culture secretaries: Baroness Nicky Morgan, Karen Bradley and Maria Miller, as well as former Health and Foreign Secretary Jeremy Hunt.

A parliamentary committee looking into supposed 'fake news' is calling for more internet censorship. It writes:

The Digital, Culture, Media and Sport Committee calls for Government to appoint new Online Harms Regulator now.

Online misinformation about Covid-19 was allowed to spread virulently across social media without the protections offered by legislation, promised by the Government 15 months ago.

The Misinformation in the COVID-19 Infodemic Report details evidence on a range of harms from dangerous hoax treatments to conspiracy theories that led to attacks on 5G engineers.

The Online Harms White Paper, published in April 2019, proposed a duty of care on tech companies and an independent Online Harms Regulator, both key recommendations from the predecessor DCMS Committee.

MPs voice new concerns that the delayed legislation will not address the harms caused by misinformation and disinformation 203 a serious omission that would ignore the lessons of the Covid crisis.

The Report finds that tech companies use business models that disincentivise action against misinformation while affording opportunities to bad actors to monetise misleading content. As a result the public is reliant on the good will of tech companies or the bad press they attract to compel them to act.

The DCMS Committee calls for the Government to make a final decision on the appointment of the regulator now.

The report summary reads:

In February, the World Health Organisation warned that, alongside the outbreak of COVID-19, the world faced an infodemic, an unprecedented overabundance of information204both accurate and false204that prevented people from accessing authoritative, reliable guidance about the virus. The infodemic has allowed for harmful misinformation, disinformation, scams and cybercrime to spread. False narratives have resulted in people harming themselves by resorting to dangerous hoax cures or forgoing medical treatment altogether. There have been attacks on frontline workers and critical national infrastructure as a result of alarmist conspiracy theories.

The UK Government is currently developing proposals for online harms legislation that would impose a duty of care on tech companies. Whilst not a silver bullet in addressing harmful content, this legislation is expected to give a new online harms regulator the power to investigate and sanction tech companies. Even so, legislation has been delayed. As yet, the Government has not produced the final response to its consultation (which closed over a year ago), voluntary interim codes of practice, or a media literacy strategy. Moreover, there are concerns that the proposed legislation will not address the harms caused by misinformation and disinformation and will not contain necessary sanctions for tech companies who fail in their duty of care

We have conducted an inquiry into the impact of misinformation about COVID-19, and the efforts of tech companies and relevant public sector bodies to tackle it. This has presented an opportunity to scrutinise how online harms proposals might work in practice. Whilst tech companies have introduced new ways of tackling misinformation through the introduction of warning labels and tools to correct the record, these innovations have been applied inconsistently, particularly in the case of high-profile accounts. Platform policies have been also been too slow to adapt, while automated content moderation at the expense of human review and user reporting has had limited effectiveness. The business models of tech companies themselves disincentivise action against misinformation while affording opportunities to bad actors to monetise misleading content. At least until well-drafted, robust legislation is brought forward, the public is reliant on the goodwill of tech companies, or the bad press they attract, to compel them to act.

During the crisis the public have turned to public service broadcasting as the main and most trusted source of information. Beyond broadcasting, public service broadcasters (PSBs) have contributed through fact-checking and media literacy initiatives and through engagement with tech companies. The Government has also acted against misinformation by reforming its Counter Disinformation Unit to co-ordinate its response and tasked its Rapid Response Unit with refuting seventy pieces of misinformation a week. We have raised concerns, however, that the Government has been duplicating the efforts of other organisations in this field and could have taken a more active role in resourcing an offline, digital literacy-focused response. Finally, we have considered the work of Ofcom, as the Government's current preferred candidate for online harms regulator, as part of our discussion of online harms proposals. We call on the Government to make a final decision now on the online harms regulator to begin laying the groundwork for legislation to come into effect.

A coalition of age verification companies have won the first round of their legal action against the Government in a bid to force ministers to introduce a shelved internet porn censorship scheme that would provide the companies with an income.The companies launched an appeal last year, saying they developed software that was never used.

A judge ruled that age verification companies, backed by children's charities, have an arguable case that the Culture Secretary exceeded her powers by deciding not to implement the ban, which had been voted for by Parliament .

The ruling means the claimants can now take the case to a judicial review, which could overturn the Government's decision.

Plans to introduce an age verification scheme were shelved in October last year, perhaps because the law did not provide any provision for keep very dangerous ID and porn browsing data private and safe. At the time, ministers said the age verification scheme as defined in the Digital Economy Act 2017 would be superceded by forthcoming Duty of Care legislation.

In court, the Government argued that ministers had not exceeded their powers and that circumstances had radically altered since the porn ban legislation was originally passed.