The Online Safety Bill has had a difficult relationship with freedom of expression as its main premise to to remove content. For that reason it was a pleasant surprise to see the House of Lords amend the Bill with explicit support for free speech as a right under the Human Rights Act and European Convention on Human Rights (ECHR). 

Until now, this support has been missing from the Bill.  This is therefore a positive outcome from the House of Lords which will  redress the balance between content removal and free speech. 

The duty to protect freedom of expression has been reinforced, and must be interpreted in line with the European Convention on Human Rights.  It has been done with the support of the government. This is a welcome move which will protect against abusive content moderation, and over-heavy removal policies.

The amendment asserts that any reference to freedom of expression means the freedom to receive and impart ideas, opinions or information by means of speech, writing or images as in Article 10 of the European Convention.  In practice it will mean that Ofcom must ensure   the safeguarding of lawful speech against over-zealous moderation and  protect against excessive blocking of access to content and platforms. It also means that platforms – under Ofcom’s guidance – must implement an effective appeals process. These measures are not in  the Bill and Ofcom will have to draft them in the Codes of Practice that it will write.

The amendment was added at the initiative of Lord Hope of Craighead, a crossbench peer and retired Supreme Court judge, who tabled it at  Committee stage. It was tabled again at Report stage by Baroness Fraser of Craigmaddie.

 It was a very simple amendment that usually would not generate much excitement.    However, by ensuring that any references to freedom of expression must be understood in the context of Article 10 of the European Convention on Human Rights, it could make a significant change. 

The amendment had support of both from both sides of the House. Notably,  Lord Stevenson of Balmacara, Labour lead on this Bill in the Lords had signed. It also had support from the government, with the Minister Lord Parkinson of Whitley Bay, adding his name to it.

It partners with another Lords amendment to Clause 1, which sets out the purpose of the law. It states that all duties imposed on providers by means of the Bill must be designed and operated such that users’ rights to freedom of expression and privacy are protected.

 This change was initiated by Lord Stevenson of Balmacara, and won support from  a cross-party group of peers including cross-bencher Baroness Kidron, and Conservative Lord Gilbert of Panteg. The final version had to have had government support. It simply would not have got in otherwise. 

It isn’t clear yet how these amendments will function in the overall context of the Bill. The key provisions in the Bill, imposing duties on tech companies and online platforms to restrict users’ posts and activities, are at odds with protection of freedom of expression. 

There will be some work for Ofcom to introduce compliance with Article 10. That could be very interesting. There could also be some very interesting choices for the regulator as it seeks to balance the political pressure for proactive – and likely over-zealous – content moderation against safeguarding lawful speech rights – an indeed, rights to access information.  But for the moment, it’s good to see this amendment in the law.  

---

I provide independent advice on policy issues related to online content. A specialism is interpreting amendments to laws. It was a core element of my PhD methodology and I’ve been doing it ever since.  If you need help with the Online Safety Bill please get in touch.   You are free to cite from this article. Kindly acknowledge my name as the author and provide a link back. 

• < Prev
• Next >