The Online Safety Bill: What can be done about its free speech problem?

Liz Truss made clear, in her first appearance as PM in the House of Commons, that the OSB will be making a comeback under her government but will be "tweaked" because of her desire to "make sure free speech is allowed". So what could those tweaks look like? We explore the options below.

Scrapping duties for content that is "legal but harmful" (to adults)

• Duties relating to content that is legal but harmful to adults ("LBHTA") could be watered down or even scrapped entirely . This appears to be a reasonably likely change given the new Secretary of State for DCMS has said this part of the OSB is being "edited".

• Currently, the OSB imposes duties on Category 1 services (the largest and/or highest risk regulated services) in respect of content that is LBHTA.

• Such content comprises "priority" content to be designated by the Secretary of State (expected to include e.g. misinformation and misogynistic abuse), as well as, more broadly, content that presents a "material risk of significant harm to an appreciable number of adults".

• The duties concerning content that is LBHTA do not require its removal but Category 1 services need to assess the risks arising from it and explain in their terms how each kind of priority content will be "treated" (i.e. whether it will be removed, restricted or not moderated at all). They are also to be bound by "user empowerment duties", under which they must give users the option to control how much of the content that is LBHTA they encounter on the service and the ability to filter out content from, and interactions with, users who have not verified their identity.

• The OSB includes much more onerous duties in relation to content that is legal but harmful to children but, unsurprisingly given the Government's stated policy focus on child safety, it has said these are not likely to change.

Changing the threshold for illegal content judgments

• The Bill's duties to tackle illegal content have sparked much less public debate however, given the threshold set by the OSB (following amendments made by Government in July) for services to determine whether content should be deemed illegal, there is a risk that services seeking to comply with those duties may be forced to over-remove content with a resulting adverse impact on free speech.

• Services must treat content as illegal where they have "reasonable grounds to infer" that is the case based on all "reasonably available information". This is clearly a different, and much lower, standard to that applied by the courts for criminal offences (i.e. the "beyond reasonable doubt" standard). It is also different to the standards adopted in other content regulation regimes, such as the concept of "manifestly illegal" content used in Germany's NetzDG law.

• This means services may have to treat content as illegal in circumstances where a court would not deem the same content to amount to a criminal offence, undermining the principle that what is legal to say offline, should be "legal" online. Changing the threshold under the OSB for the illegal content assessments to be made by services could therefore be another way of better protecting free speech. 

Strengthening the duties to protect freedom of speech

• The Bill's positive duties to protect freedom of speech are currently limited to:
  • a duty on all services, when deciding on and implementing content moderation measures, to "have regard to the importance of protecting users’ right to freedom of expression within the law"; and
  • a duty on Category 1 services to carry out and publish regular assessments of the impact of their content moderation on freedom of expression and to publicly explain the steps taken in response to that assessment.

• There is an obvious tension between these duties, which are procedural in nature, and the Bill's competing "safety duties" to, protect users from illegal and harmful content, which demand absolute outcomes (e.g. to swiftly take down illegal content or prevent users from encountering it).  The free speech duties can be satisfied by taking the procedural steps of having regard to user rights or carrying out an impact assessment.

• Another potential free speech friendly change to the Bill would therefore be to strengthen the free speech duties by putting them on more level footing with the competing safety duties.

Scaling back the use of proactive monitoring

• The OSB does not exclude obligations to carry out "general monitoring" of services to identify illegal content, a protection that was included in the EU's e-Commerce Directive and is maintained in the Digital Services Act. In fact, the OSB provides Ofcom with wide powers to direct companies to use technology to proactively monitor their services for certain types of illegal content, both through regulatory codes applicable to all services and by issuing notices to specific companies.

• The purpose of a general monitoring prohibition is to protect against the over-removal of content and the resulting harm to free speech online. There have long been concerns about relying too heavily on automated technology to proactively monitor online services for illegal and harmful content, which could result in the blocking of legitimate content (for example, where the technology is incapable of assessing context and so cannot distinguish between academic literature and appropriate debate about contentious subjects and genuinely offensive and harmful material). Further safeguards in the OSB in relation to the use of proactive monitoring technology are therefore likely to be a welcome change for free speech advocates.

Additional protections for private communications

• Finally, on the face of the Bill, there is no express distinction in the way providers are expected to treat private and public communications on their services, including in relation to their free speech duties. However, users may well expect a greater degree of protection for their right to freedom of expression in the context of private discussions, such as one-to-one instant messaging conversations, as compared to posts on public forums. While this sort of distinction may be brought out in Ofcom's regulatory codes and guidance, it could also be a further free speech protection added to the text of the OSB.

As Government lawyers take a red pen to the OSB once more, they have the unenviable task of revisiting the tension at its core. We will be closely watching to see how far the free speech "tweaks" will go.

Authored by Telha Arshad.