Who watches the Watchmen?
Ofcom, free speech and the Online Safety Bill
Hello.
It’s been a while, hasn’t it? “Not long enough!”, I hear you cry. Well, never mind. There’s always the unsubscribe button, isn’t there?
Before you go, though, let me slip a bit of news across your boughs. I’ve prepared a briefing for the Free Speech Union.
It’s about the Online Safety Bill, which had its second reading in the House of Commons this week and will almost certainly pass into law at some point this year.
I’ve included the introduction to the briefing in full, below, but you can find the whole briefing here: Who Watches the Watchmen? Ofcom, Free Speech and the Online Safety Bill. (By the way, if you haven’t already, then you should really think about signing up to receive the Free Speech Union’s free weekly newsletter).
Introduction
The latest version of the Online Safety Bill was introduced in Parliament on 16 March 2021. Subject to scrutiny, debate and some no doubt minor amendments it’s likely that this iteration of the proposed legislation will be passed and made into law. According to the inimitably boosterish rhetoric so beloved of Boris Johnson’s administration, the UK isn’t about to be fobbed off with any old journeyman, making-up-the-numbers online safety laws, either. No, from now on we’re all going to be lucky enough to have our online activities policed, chivvied and curtailed by what are in fact “world-leading online safety laws”.
World-leading on whose criteria, one wonders?
Certainly it’s true that the primary aim of the Bill’s (no doubt suitably world-leading) regulatory framework will be to remove “illegal online content” and “priority content that is harmful to adults”, as well as content that’s harmful to children. What we shouldn’t lose sight of in the Government’s giddy rush to celebrate the creation of their “safer online environment”, however, is the fact that the Bill professes to having a secondary aim; an aim that is, in some ways, precipitated by the first. Early on in the law-making process the Government seem to have twigged that you can’t go about arbitrarily decreeing what can or can’t be uttered, filmed, drawn, written, seen, debated, analysed, critiqued, posted, uploaded or Tweeted online, and then expect to be able to strut about on the global stage like some sort of Lockean paragon of liberal democratic virtue without one or two of the bawdier citizenry down in the cheap seats at the back of the stalls starting up with a spot of the old slow handclap treatment. Perhaps that’s why the latest iteration of the Bill pays some grudging, and frankly rather desultory, attention to its secondary aim, namely, ensuring that the proposed regulatory system will “strengthen people’s rights to express themselves freely online and ensure social media companies are not removing legal free speech”.
Not that it’s particularly easy to locate that attention. Approaching the vast, grey-stoned and crenelated sham of this Bill’s legal architecture through the overly ornate wrought-iron gates out front, we find ourselves caught in the glare of its primary aim: providing individuals with a secure, stable and essentially sanitised online environment. It’s only when we creep around the back that we’re able to discern the outline of the Bill’s secondary aim, lurking shamefacedly in the shadows behind the bin-store just opposite the servant’s entrance: allowing for the risk and the uncertainty of a public sphere in which freedom of speech is not just tolerated but actively cultivated.
Ostensibly, these aims are incompatible… and yet the Bill claims to be forcing them into a position of compatibility. It’s true, of course, that much of what passes for ‘politics’ in the post-Enlightenment Anglosphere is little more than a collective, emotionally fraught attempt to do just that, with a variegated assortment of charismatic gargoyles all dashing about trying to cadge a soapbox from which to announce that they, and they alone, have found the best way, the only way, the Net Zero way, the Third Way, to force security into compatibility with freedom, becoming into compatibility with being, the state with individuals, certainty with risks, social order with innovations, collective responsibilities with rights. And yet it is, nonetheless, a little unusual for an online regulatory system to find itself tasked with resolving the sorts of epistemological dichotomies that the Montesquieus, de Tocquevilles, Hegels, Hayeks, Schumpeters, Nietzsches, Polanyis, Heideggers, Arendts, Sartres and Foucaults of this world have all hitherto found so intractable.
So will the regulatory system proposed by the Online Safety Bill prove at all capable of fulfilling what is, essentially, an ethico-philosophical task? Will it possess the necessary intellectual dexterity, the necessary political commitment, not just to hold these apparently incompatible principles in tension, but to champion them both and to do so at the same time? Will it come into being armed with regulatory tools and mechanisms potent enough to hold multi-billion-dollar online providers to account for the adequacy (or otherwise) of the balance their online content moderation systems establish between collective security and individual freedom? Or might the Bill’s references to “strengthen[ing] people’s rights to express themselves freely online” prove to be little more than well-intentioned makeweights; a form of linguistic ballast that rolls rather nicely off one’s tongue in the rarefied atmosphere of the Houses of Parliament, say, or perhaps while sitting freshly varnished on a breakfast TV sofa and incanting one’s vacuous, learnt-by-rote soundbites; linguistic ballast that, in practice, out there in Silicon Valley’s digital swamp, might all too quickly come to be discharged, cut adrift, forgotten about, once the proposed regulator’s staff realise they are laughably out of their depth, drowning in algorithms they cannot hope to understand, and surrounded by sharks that will continue to tear the First Amendment to pieces, whether these ‘world-leaders’ want them to or not?
It is to these and other, similar questions that this paper addresses itself.