This is a reposting from iptegrity.com, which recently entered into a cross-posting agreement with MediaLaws. We welcome Dr. Monica Horten onboard and are delighted to host her comments on MediaLaws
On the same day as the Queen’s Speech on 27 May, a private members’ Bill was introduced to Parliament that provides for wide-scale content filtering by network providers and device manufacturers. Whilst the headline objective is to remove ‘adult’ content from the Internet, the Bill opens the door to a much broader interpretation and in that regard, poses serious risks to freedom of expression. If adopted, the proposed regime would be implemented and overseen by private companies, outsourcing the government’s duties to corporate actors. It may never get on the Statute, but it does signal attempts by lobbying communities to pressure the government.
The Bill is called the Online Safety Bill. It is sponsored by Baroness Howe of Idlicote, wife of the former Conservative Chancellor, Geoffrey Howe. It seems that this is not the first attempt to get such a bill through Parliament. Indeed, according to the Open Rights Group, it is the fifth time that it has been presented, so it would seem that its chances of becoming law are slim. However, the possible implications of this Bill are so serious that it should not be taken lightly.
The Bill was introduced in the House of Lords, a legitimate procedure where there is no implication for the public purse. The government does not have a majority in the Lords, so that may diminish its chances of getting further.
What’s really interesting about this Bill is that it appears to have taken its template from the Digital Economy Act. This was the law to support a copyright enforcement regime imposes duties on the Internet Service Providers. As we know, the Digital Economy Act was whipped through the dying stages of the last Labour government, and has ultimately proved abortive.
The template imposes duties on the Internet Service Providers to police content, but the implementation requirements are ‘not on the face of the Bill’. This is a Parliamentary phrase meaning that information has been left out of the Bill. Instead Ofcom is asked to draft the specifics in the form of a Code of Practice, which will only come back to Parliament under the Annulment procedure. This means that Parliament will not get to scrutinise the proposals properly – and scrutiny is critical because the devil really is in the detail. (See my book A Copyright Masquerade for more on the Digital Economy Act and how it was processed).
The Online Safety Bill has three main elements. The key one is a duty on Internet Service Providers, including mobile operators. The duty requires them to provide a ‘default on’ service, where the default is the filtered service. In other words, it’s an opt-out filtering regime. They will have to filter out ‘adult’ content under supervision of Ofcom.
The big loop hole is that the Bill additionally makes provision for ‘filtering of content by age or subject category”. This language opens the way for a whole shopping list of other content, that may have absolutely nothing to do with the stated objective of the Bill.
The second element is that to implement an age verification scheme so that anyone wanting to access adult content must prove that they are over 18 years of age. Personally, I would have fewer concerns with this element, assuming that it is intended to take a concept established in the offline world and puts it online, and it would have to operate only in response to individual requests. In other words, whether or not it is a blanket scheme applied to all users, and only applies to those who try to access specific content, would need to be scrutinised.
The third element mandates payment services providers, such as credit card companies, to police ‘foreign’ adult content websites by removing credit facilities, in cases where those websites fail to obtain a licence to sell their services in the UK.
It is uncertain how such a licencing scheme could be operated. A concern is that it would set precedent for any other content that the government does not like, and hence, it deserves serious and in-depth Parliamentary scrutiny.
Smart phone and tablet manufacturers would also be subjected to filtering requirements.
With its broad brush, blanket approach to filtering, this Bill has serious potential to violate the right to freedom of expression and it would also seem to be a flagrant breach of EU law (perspectives from the lawyers are welcome!). It most certainly will violate net neutrality.
As a private members’ Bill, it is unlikely to make the full run into law, but it must raise concerns about the ability to abuse the Parliamentary process in order to bring in laws that engage freedom of expression, without proper scrutiny.
I personally find pornography offensive to women, and agree that it is not appropriate for children to access such content, but as a free speech advocate, I also recognise that some forms of it are legal, and the approach in this Bill is not compliant with a liberal democracy and bastion of free speech as Britain rightly claims to be. An alternative solution should be found, and there must be full democratic debate before any legislation is imposed.
