The Online Safety Bill is coming back for its Report stage on Monday. Secretary of State Michelle Donelan said again in DCMS questions this morning that she has removed the “legal but harmful” clause and protected free speech. Online-harm activists don’t like it one little bit, though free-speech enthusiasts should take no comfort from that. The Bill puts into legal jeopardy anything that creates “a material risk of significant harm to an appreciable number of adults in the United Kingdom”.
Significant harm? What constitutes “significant harm”? Precedent tells us “harm” is very much in the heart of the beholder.
Say that a private citizen posts:
Biological sex trumps gender ID. Transwomen are transwomen – not actual women.
And an activist reports the post to Ofcom – or to the publishing platform, or to the court, in a private prosecution – saying,
This hateful speech has damaged the core of my identity. It has attempted to erase my very being. I feel not just disparaged but annihilated. Half of all trans children who are denied will attempt suicide. I am now in danger of killing myself.
How can that not be interpreted as “significant harm”? The question is – under this Bill, will Kathleen Stock (the university lecturer hounded from her job by woke activists) be able to question gender ideology on social media?
Reading the Bill, Guido suggests she will not. Activists will claim harm. And even if Ofcom prevaricates, the owner of the platform will fear for being fined 10% of its worldwide income. It will censor the posts of private citizens and all posts like it “to prevent harm”. So – that’s the Stock question. It needs more than a stock answer.
UPDATE: The reservations expressed in Guido’s items on this subject were the result of reading the Bill as published on the internet. The Secretary of State’s version relies on consolidating her proposed Amendments with the text of the Bill – something that won’t happen until the relevant amendments have been passed, we all assume, on Monday.
Secretary of State Donelan has been in touch to say that her Amendment striking out Clause 151 removes the vestiges of “legal but harmful” from the Bill. The text of the Bill – still posted on the internet – says that an offence would be committed if anyone sent a message that risked causing “harm” to “a likely audience”. With Monday’s amendment, 151 is omitted and there will be no grounds in it for activists to pursue minority opinion-holders in the courts or through any administrative processes in Ofcom.
When we compare the Amendment book with the Bill itself, the Secretary of State’s intentions are as clear as the drafting process allows.
Ms Donelan also mentioned in passing that, as a universities minister, she had spoken out in favour of free speech and defended the very Kathleen Stock of the Stock Question. She wasn’t entirely alone but there were precious few supporting voices at the time.
In further positive news, Clause 19(4) protects the like of Toby Young and his organisations that live in danger of being struck off the internet by hostile platform-owners. If they arbitrarily No Platform him, he will be now able to sue them for breach of contract.
But without wanting to be dog in the manger about it, and while recognising the efforts and achievements of the new team who inherited this unpredictable piece of legislation – there is still concern that the Stock Question will get the wrong answer.
May not the Question simply be passed from the Minister’s desk to Ofcom’s desk to the desk of the various social platform Inclusion officers? From recent history, these shadowy figures operate a “legal but harmful” policy beyond anything a Western government should countenance. The Bill requires those platforms to “have regard” to users’ right to free expression – but there are any number of ways around that.
“Legal but harmful” is out. “Serious distress” is out. Michelle Donelan has done what she can. But only when the Bill becomes an Act do we start to see how it works in the world.