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.