Free speech concerns over Britain's internet law

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LONDON — Britain's proposed new internet law entails a government power grab with worrying implications for freedom of speech, according to civil liberties groups, academics and the tech industry.

The groups are concerned the proposed Online Safety Bill would hand to Culture Secretary Oliver Dowden disproportionate powers in the name of protecting users from “harmful” content.

The Bill allow him to “modify” a code of practice — the blueprint created by the regulator Ofcom for how tech companies should protect users — to ensure it “reflects government policy.”

Critics say such powers, which were set out in a draft of the proposed law published in May and due for imminent scrutiny by MPs and peers, could undermine the regulator's independence and potentially politicize the regulation of the internet.

“The notion that a political appointee will have the unilateral power to alter the legal boundaries of free speech based on the political whims of the moment frankly makes the blood run cold,” said Heather Burns, policy manager at the Open Rights Group.

The draft bill — which hasn't yet begun its formal passage through parliament — is due to be checked line-by-line by legislators before being brought back to parliament later this year, where it will then pass through the stages it needs to end up on the statute books. The U.K. government and opposition parties are currently finalizing which lawmakers will sit on the pre-legislative committee.

Even the Carnegie Trust — a public policy think tank whose research on a “duty of care” model to regulate the internet influenced early iterations of the government's proposed legislation — has raised concerns.

“To meet the U.K.’s international commitments on free speech,” it said in a response to the bill, “there should be a separation of powers between the executive and a communications regulator.”

The power to modify a code of practice to “reflect government policy” might undermine OFCOM’s independence, it added. “Removal of this provision is, in our view, desirable and would reaffirm of regulatory independence.”

Industry fears

Lorna Woods, a professor of internet Law at the University of Essex involved with Carnegie Trust's research and response, said “The ability of the secretary of state to give Ofcom directions to bring Ofcom into line with government policy makes me a little uneasy as to in what circumstances the secretary of state can do that, and what level of specificity is envisaged. That's slightly worrying.” 

“How that operates is potentially worrying because you could be seeing a government directing Ofcom to emphasize certain things that aren’t perhaps politically neutral,” she added.

Antony Walker, Deputy Chief Executive of Tech UK, a trade body with about 800 tech industry members, agreed some of the powers in the bill appeared to go beyond “what would be normal.”

“In a well-regulated sector in a democratic society, an independent regulator is seen as a really a good thing,” he said.

Commercial companies want to know what is required for them to be compliant, he added. “If they're always looking over their shoulder I think that has significant commercial impacts and also undermines confidence in the legislation.”

Ben Greenstone, a former principal advisor to the minister with responsibility for online harms — now managing director of Taso Advisory, a tech lobbying firm — said: “The draft Online Safety Bill gives the secretary of state for digital a remarkable, and I think unprecedented, power to direct an independent regulator. This leaves business with serious uncertainty: the rules can change based on the whims of one politician.”

Opponents of the clause also raise concerns that the regulator will already be politicized.

“It’s clear that Ofcom, whose leadership will also be a political appointment, will be an independent regulator in name only. Their role will be to carry out the political bidding of Secretary of State for DCMS [the Department for Culture Media and Sport], as well as the Home Secretary, and they will do what they are told. These moves, of course, will be depicted as being in the national interest or as matters of national security,” added Burns of the Open Rights Group.

Mark Johnson, a legal and policy officer at Big Brother Watch, argued that any restrictions on our right to free speech must be in line with U.K. law — decided on through a full legislative process, “not on ministerial fancy.”

“Giving such discretion to government ministers means this legislation will hand over huge amounts of power to the state,” he added, “and opens up this flawed system of regulation to politicization.”

Responding to a request for comment from POLITICO, a DCMS spokesperson said: “Our world-leading laws will place clear and robust duties on in-scope companies and Ofcom to uphold and protect people’s free speech while making sure they do not over-remove content.

“The bill has been designed with suitable and transparent checks and balances so that Ofcom's implementation of the laws delivers on the policy objectives decided and scrutinised by a democratically elected parliament.” 

This article is part of POLITICO’s premium Tech policy coverage: Pro Technology. Our expert journalism and suite of policy intelligence tools allow you to seamlessly search, track and understand the developments and stakeholders shaping EU Tech policy and driving decisions impacting your industry. Email [email protected] with the code ‘TECH’ for a complimentary trial.

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