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OPINION: Tech regulation must not threaten freedom of expression online

by Mark Johnson | @Mark_AJohnson | Big Brother Watch
Thursday, 28 October 2021 11:32 GMT

Small toy people figures are seen in front of displayed social media logos in this illustration taken, May 25, 2021. Picture taken May 25, 2021. REUTERS/Dado Ruvic/Illustration

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

The removal by social media platforms of lawful speech related to a public policy matter is a worrying step. The UK’s Online Safety Bill would make this interference with free speech state-backed

Mark Johnson is Legal and Policy Officer at Big Brother Watch

Earlier this week, former Facebook employee Frances Haugen gave evidence to a committee of MPs responsible for scrutinising the government’s Draft Online Safety Bill. In a session which stretched out over two hours, the former Silicon Valley executive set out why she believes Facebook is a threat to our safety.

While Haugen’s knowledge of Facebook’s internal processes is clear, her competency at advocating public policy solutions to some of the issues at hand, particularly through a human rights lens, is less established. Attacking an intermediary for the bad actions of individuals can have serious consequences for the free flow of discourse and information, not least when these intermediaries facilitate the communication of billions of users around the world.

There is little doubt that there is something rotten at the core of big tech platforms like Facebook. Yet this episode presents two real dangers – firstly, that legislators respond to these testimonies, not by considering the flaws in the major platforms’ businesses models, but by aggressively pursuing a regulatory approach which specifically targets content moderation and thus has major ramifications for free speech online. Secondly, that such a regulatory response, which would reconfigure our rights in the online world, is designed specifically with a solitary platform in mind.

MPs are already taking the first steps down this dangerous path. The Online Safety Bill will force companies to take down lawful expression and make them suppress content that the government deem to be “harmful”.

Concerned about the spread of “misinformation” and under the weight of political pressure, social media companies have become ever-more censorious over the course of the pandemic. At different points over the last two years, platforms have taken down content which both lauded and disputed the efficacy of face masks, even from academics. The removal of lawful speech related to a public policy matter, particularly in an area of developing knowledge, is a worrying step. The Online Safety Bill would make this interference with free speech state-backed.

Under the legislation, the government of the day will be able to identify areas of lawful expression that they think risk potential “harm” and compel platforms to address these subject matters in their terms of use, which they will then have to apply consistently. Such a level of executive control over a regulatory regime which is completely detached from human rights standards is deeply concerning.

Sanctions for companies that are non-compliant include a reserved provision to criminalise tech executives; a move previously threatened by the Modi administration in India to Twitter staff who refused to remove content which was inconvenient to the Government there. However, the Online Safety Bill even goes further and actually threatens blanket ISP blocking. This is a nuclear option which should not be imposed upon a social media network in a rights-respecting democracy like the UK and effectively threatens a sudden communications blackout.

With provisions to both undermine end-to-end encryption and age-gate online services, the proposed legislation also severely threatens the right to privacy.  The introduction of Germany’s NetzDG law in 2017 led to the emergence of copycat models in countries such as Russia, Venezuela and Turkey. It is hard to see how these proposed authoritarian steps in the UK’s own domestic legislation would not also embolden malign actors around the world.

The legislation gives legitimacy to what has become known as surveillance capitalism, compelling companies to increase monitoring of users. Far from tackling the big tech monopolies, the burdens imposed on companies will be so great that the Online Safety regime will only entrench the power of those who have the means to comply. A real risk is that smaller online services based overseas will simply choose not to operate within the UK, cutting us off from the rest of the world.

How to regulate big tech is a question on the lips of policy-makers and politicians all over the world. It is vital that we take an approach which places human rights at its core. The road to a Great British “splinternet” is paved with good intentions. If policy-makers get this legislation as badly wrong as they are with the current Online Safety Bill, it will have lasting consequences for our ability to communicate freely for decades to come.