The origins of the Online Harms Bill lie in the death of Molly Russell. The teenager killed herself after seeing images of suicide and self-harm on Instagram. There was, understandably, an outcry. Theresa May’s government declared that something must be done.
That was five years ago. Since then, there has been a White Paper, a consultation, a draft Bill, a joint committee of Parliamentarians to consider it, a report by the committee that in many respects was critical of it, a separate inquiry into the Bill by the DCMS Select Committee…and now the Bill itself.
This mass of hearings, evidence-taking and debate suggests at once a certain hesitancy from the Government. And so it must be when the measure in question covers cyberbullying, racism, misogynistic abuse, pornography, and material promoting violence and self-harm.
Within the last few month, Ministers have added the following to the list after other recommendations – this time from the Law Commission: a harm-based communications offence, a false communications offence, and a threatening communications offence; incitement to and threats of violence, hate crime, financial crime and cyberflashing.
In short, the Bill has become what’s known in the trade as a Christmas tree – an object on which a mass of decorations is hung. One wit has compared it to Brigadoon, the mythical Scottish village which vanishes only to reappear. Except Brigadoon only comes around once a century, and doesn’t return each time with more inhabitants.
It should be said at once that some object to the premis of the Bill – namely, that Government can coherently legislate to bar what is harmful rather than unlawful. To which there is an obvious riposte: that once the Bill is passed, the harmful activities described above will become unlawful.
But let’s leave aside that Oxford Union debating point reply, and agree that harm can be in the eye of the beholder. Nonethless, the idea of protection from harm, and not only from physical harm, is written into the law – in anti-discrimination legislation, say; or more pertinently as far as this Bill is concerned, anti-obscenity laws.
For obscene publications often harm no-one other than those who read them, at least as far as the law is concerned, as so it surely was also with the pro-suicide material that fed Molly Russell’s despair. Few other than committed libertarians will quarrel with the principle of the Bill.
Especially since the police and the courts have increasingly tended to focus anti-obscenity activity on children. Crown Prosecution Service guidelines now say that pornography depicting legal acts between consenting adults will no longer be prosecuted providing no serious harm was caused and the likely audience is aged over 18.
So the question for Conservatives, both with a big and a small C, is less philosophical than practical: namely, will the Bill work? Is is likely to get the balance right between child protection and free speech – the key opposing tensions in the legislation?
The key to understanding the answer is the position of big social media companies. For it is they who hold a near monopoly on the provision of the information that the Bill will consider. Which means that it’s been heads you lose, tails you lose for Nick Clegg.
For if Facebook, of which the former Deputy Prime Minister was until recently Vice‑President of Global Affairs, publishes material likely to promote terrorism (say), the cry will go up: “why isn’t he stopping it?” But the Government gives the company more censorship obligations under the Bill, it will be: “why is Johnson giving Clegg more power”?
These contradictory criticisms flow from the Fleet Street papers, which is are competition with the social media companies, and so have a special interest in kicking them around. And they are echoed by many MPs, who hate the social media that modern communications oblige them to use.
No wonder: “I want to see you, trapped in a burning car and watch as the heat from the flames melts the flesh from your face”. So a troll wrote to Nadine Dorries. She told her story on this site four years ago. “The abuse became so bad that I felt the need to stop giving media interviews, writing articles and to remove myself from the public arena”.
Some MPs on all sides of the Commons have had comparable experiences – so much so that social media-enabled abuse of MPs duly came up in the wake of the murders of Jo Cox and David Amess. (I pointed out in the wake of the second that there was unlikely to be a link, but that “it will have an impact on attitudes…to the Online Harms Bill.”)
So on the one hand, you have enraged newspapers, concerned parents and angry MPs. And on the other, Big Brother Watch, concerned think-tanks, the Free Speech Union and Index on Censorship. Some in government believe that the latter make noise out of all proportion to their size.
Others think that they have got a point, and despair of the Bill altogether. Dorries is now the Secretary of State who has charge of it. She recently returned to ConservativeHome to offer concessions to the Bill’s critics – narrowing the definition of harm, for example, and offering protection for journalists.
The issues surrounding the Bill are complex – especially the legal ones, since the social media giants are usually located abroad. That the European Court of Justice has ruled that Facebook must take down libellous content not just in Austria, but globally, is an indication of how muddy the waters of responsibility are.
Perhaps one day in the non-so-distant future, the social media companies will lose their monopoly on information, as the monasteries did to the universities during in the middle ages. The equivalent in this case would be not institutions but people, as the metaverse succeeds the internet.
But for the moment we are stuck with the central proposal of the Bill – namely, new powers for OFCOM in which it will literally lay down the law to the social companies. I’m told that it was chosen as the vehicle because Ministers expected Paul Dacre to be appointed to take charge of it.
Any sensible person should be sceptical of a system designed around a person – precisely because that he or she moves on sooner or later: that’s to say, if they’re appointed in the first place, as was not the case here. The circumstances of the Bill’s introduction compound the problems.
John Whittingdale was quoted on this site last week as saying that, because at least one statement will precede the Bill’s Second Reading today, speakers during the debate on “this hugely important and hideously complicated Bill will get about 30 seconds each”.
The hard work of considering the measure in detail will doubtless fall to their Lordships (as usual). Some in the DCMS apparently expect the Bill to be most amended in recent years. Andrew Gimson recently profiled Chris Philp, the Minister who, with Downing Street, will be charged with deciding which amendments to accept and reject.
If he is to keep control of the measure’s proceedings, the Online Harms Bill can only become an Online Smarms Bill – with Philp doling out lavish compliments to movers to amendments, no matter how badly considered or drafted they may be.
One can’t escape from the paradox that taking any new actions at all means giving the social media companies new responsibilities – and thus powers too. Ministers are in a difficult place with this Theresa May legacy project. The Christmas tree risks becoming so laden with decorations as to come crashing down.