On freedom of expression, the Government’s left hand is not speaking to its right
June 2, 2023 7:00 am(Updated 7:48 am)
Let me take you on a journey to Britain, 2025. The Oxford Union plans to debate the Kate Moss mantra: “nothing tastes as good as skinny feels.” The university decides this contravenes their policy on “wellness” and steps into cancel the event – or bows, as ever, to the threat of raging protest led by student groups, who threaten to answer the “violence” of words with violence on the streets. A speaker invited to promote the motion complains to the government; the government fines the university for contravening her freedom of speech.
This is one version of the future, under the Sunak Government’s new Freedom of Speech Act. Professor Arif Ahmed, a committed champion of the importance of intellectual pluralism on campus, was formally announced on Thursday as the first “director for freedom of speech and academic freedom” at the Office for Students. He sets out his plan in The Times for a Britain in which “we settle disputes by discussion, not censorship or violence”. I applaud him.
But let me extend my hypothetical tale of 2025. The Oxford Union’s invited speaker goes home, frustrated. Instead, she posts her speech on Facebook – the words she would have spoken aloud to students, a right the Government wishes so doughtily to defend. Here, she attracts another complaint. Whether by automated software, or by human eyes, her post is tagged as “pro-anorexia.” Facebook deletes it. If it fails to do so, it faces a fine from the Government for promoting harmful public health messages, especially to adolescents.
This is the version of the future offered by another part of Sunak’s legislative programme. On free speech, the Government’s left hand is not speaking to its right.
The Online Safety Bill is passing through the last gestation chambers of Parliament before it is birthed, misbegotten, into law. Clauses are being tinkered over in the House of Lords before inevitable compromises are pushed back to the bill’s authors in the Commons: the exact final text of the final act is still unclear. The most extreme provisions to create a new category of “lawful, but harmful” speech have been removed. But it is still possible that the final version of the bill will see tech platforms legally liable for speech that is deemed “harmful” to the public good.
Who decides when speech is harmful? Well, when university students huff and puff about speech being “violent”, the Tory Government and commentators like myself collectively roll our eyes. When we talk about the internet, and the big scary world of tech platforms that few MPs truly understand, you hear a lot of blather about protecting “the children”. Often from the same people.
There are good reasons why successive Tory governments have fretted over drafts of this bill. The internet remains a Wild West. Our communications legislation is woefully out of date and groans under lawyers’ attempts to make it carry the weight of 21st century crimes: new forms of stalking and harassment; military-grade disinformation by hostile nations; online fraud; the more unethical varieties of pornography. The Online Safety Bill will tackle some of these issues and is right to do so.
Meanwhile, tech companies employ algorithms which encourage us to consume more and more content conforming to our most addictive tendencies. A number of parliamentarians have told me of being deeply moved by evidence given at a session in Parliament by the father of Molly Russell, the 14-year-old who killed herself after viewing hours of content about self-harm online. It was not the content that shocked most, but the automated reminders that kept encouraging Molly to return to her darkest viewing. When she briefly tried to break her addiction to this content, tech platforms noticed the absence of her eyeballs, and automatically took action to lure her back in.
There is a difference, however, between regulating algorithms and regulating content. When we choose break an addiction to certain types of content – online pornography, should be treated primarily as an issue of addiction – it should be easier to do so. But the Government should pause for thought before it tries to apply different legal standards to our lives online and offline.
For most citizens of modern Britain, our lives online flow utterly interwoven with our lives offline: it is impossible to distinguish between where one starts and the other begins. (A friend was recently asked if she’d first met her boyfriend offline or online: what do we count, she asked? A smile at a mutual friend’s party, or the number of prior times she’d spotted his witty comments below the same mutual’s Instagram posts?) Yet our lives offline are deeply regulated; our lives online are still poorly understood by the law. In April of last year, I found myself explaining to readers of this paper why the Communications Act of 2003 meant that a man who filmed his friend making offensive comments and sent it to a WhatsApp group was given a suspended jail sentence, while the friend who actually made the comments faced no charges. The Online Safety Bill aimed to clear these issues up. Instead it risks introducing new inconsistencies.
The tension between the Freedom of Speech Act and the Online Safety Bill is not the only area in which the Government looks inconsistent on freedom of expression. There are some red herrings. The right of the Tory party has begun a concerted campaign to discredit the Worker Protection Bill, a proposed amendment to the Equality Act 2010 which would add protections on sexual harassment, citing spurious claims that it threatens free speech in the workplace. (In fact, an amendment guarantees the protection of lawful speech.) Yet these MPs belong to a party proud to obtain recent Royal Assent on the Public Order Bill – a bill designed with the laudable aim of discouraging social saboteurs from blocking ambulances on busy roads, but which has emboldened every police officer hungry for an excuse to arrest a peaceful protester. Look what happened at the coronation.
Arif Ahmed’s brief is to defend freedom of expression in universities. An able man, thoughtful in conversation, he will do so well. But students have been squabbling over who gets invited to speak for decades. It is in workplaces, religious temples, and online forums that new threats to speech are truly emerging. In that adult world, the Government needs to join the dots.