As the Government prepares to announce sweeping proposals this autumn, the report, Safety without Censorship, raises significant concerns about the existing proposals for regulating online speech, which the think tank argues will stifle freedom of expression and penalise small businesses and start-ups who will be unable to afford the costs of compliance.
It argues that the vagueness of the responsibilities the new regime imposes, the excessive scope and disproportionality of its sanctions will result in measures that violate fundamental legal principles of liability and privacy, and are therefore likely to fail in their present form.
Of particular concern in the original Government White Paper are:
Instead, the CPS is proposing that Ofcom should take responsibility for online harms regulation, as under the current proposals, but with entirely separate functions for dealing with illegal and legal content. Ofcom’s powers should only allow it to take enforcement action where a particular platform has consistently failed to act on egregious content.
The guiding principle should be that it is for Parliament to determine what is sufficiently harmful to be criminalised, not for Ofcom or individual platforms to guess. If something is legal to say, it should be legal to type.
The report also calls for a beefed up police response to tackle the most egregious online harms and better enforcement of existing laws banning terrorist and child sexual abuse content – with new manpower and resources to address the challenge.
The report was supported by The Coalition for a Digital Economy (Coadec), the policy voice of tech startups and scaleups.
Report author and CPS Senior Researcher, Caroline Elsom, said:
“It is encouraging to see the Government making a genuine attempt to grapple with the multitude of conflicting rights and principles that govern individual and companies’ behaviour online. But getting the balance right between protecting people from harm and upholding the right to freedom of expression and privacy is a delicate line to tread.
“The current legislative hiatus caused by the COVID-19 pandemic, offers a golden opportunity to divert from the current path and move to an alternative model that better meets the Government’s own stated objectives.”
Dom Hallas, Executive Director of Coadec, said:
“These are difficult issues. And it’s important we get the balance right between competing aims of free expression and harm. This report shows the way in which we can draw a clear distinction between things that are illegal and must be stamped out through increased policing, and things that are legal and need to be treated more carefully.
"This model would allow smaller businesses to compete more fairly with big players instead of allowing tech giants to entrench their dominance.”
Ruth Smeeth, CEO of Index for Censorship, said:
"We all recognise that there is a problem with online hate but you can't simply legislate for cultural change. We need nuance, we need consistency, we need education and most importantly we need a serious debate about our digital lives.
"We cannot have a situation that legislates for 'legal but harmful' speech - this would be a clear attack on our rights to free speech and free expression."
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