Next week the infamous Online Safety Bill returns to the Commons. The government has ditched the “legal but harmful” clause but has replaced it with… something worse.

The new wording requires social media moderators who have “reasonable grounds to infer” that content will create “serious distress” to remove that content. Taken together, “Reasonable grounds to infer” and “serious distress” are a significant step into the shadows..

Back in May this year, a Government “communications offences factsheet” told us that the criteria for “legal but harmful” were: 

• Is harm intended to the likely audience?
• Is there a reasonable excuse?
• Is it a matter of public interest?

Thus, under the previous “legal but harmful” proposals – political cartoons were exempt. Also, the statement “I don’t believe trans women are women” was exempt. The guidance said “There is no intended harm and neither was there a substantial risk of serious distress.”

The new wording creates a demand for “seriously distressed” people – for fervent believers in their religion, gender identity, personal ideology to express anguish. How can moderators look at social posts from, say, the trans lobby saying, “You have erased our existence!” and not infer “serious distress”? Guido is pretty certain that if a demand for hysteria is created, the supply will rise to meet it. 

UPDATE: The department has been in touch to say our report ignores the Minister’s announcement on the morning of publication that the proposed new offence of causing “serious distress” is to be removed from the Bill, as are the provisions regarding “legal but harmful”.

And it is true that the words “legal but harmful” and “distress” no longer appear in the Bill. If the Minister is to be credited on winding the wording back, Guido is happy to do so.

However, the drafting changes leave the Bill fully inhabited by the spirit of both “legal but harmful” and “distress”. Clauses 151 and 154 say that an offence is committed if there is a real and substantial risk of “harm.” “Harmful” is to be defined by the Secretary of State – although under the law as it stands, “harm” is defined by whoever feels themselves harmed – a category that, in modern discourse, includes “serious distress”.

Note also that the harm doesn’t need to be realised. Courts can step in if there is a risk of harm (the spirit of “infer” is still lively).

The department will say that these provisions have been in the Bill from the start – which may be true but is hardly a great defence.