Britain’s Worst Amendment: The Online Safety Bill

Our new online safety laws will make the internet a safer place for everyone in the UK, especially children, while making sure that everyone can enjoy freedom of expression online.
From the summary of an early reading of the UK’s new Online Safety Bill, 2022.

Matilda told such dreadful lies
It made one gasp and stretch one’s eyes.
Hillaire Belloc, Matilda, 1907.

There are doubtless many technical differences between soft and hard totalitarianism, but one of them is surely the nature of power at its point of application. We might call the infringement of power as it impacts the individual “capillary”, after the tiny blood vessels that connect the body’s blood supply with its major organs and without which those organs could not function. Power is nothing without its application. Capillary power under soft totalitarianism does not take the form of night-sticks, tear-gas, and jail cells, but often presents as legislation. You will watch what you say in public if you know it may lead to your door being kicked in at 2am. But you will also be circumspect if the law of the land is engineered to outlaw certain opinions, and which, if infringed, could lose you your job, your bank account, and your credit rating. One such statutory instrument receives royal assent (and thus becomes UK law) this month, and King Charles III could be signing away his countrymen’s freedom of speech.

The Online Safety Bill: Emo

The Online Safety Bill (OSB), in its early parliamentary readings, was known as the “Online Harm Hill”, but re-branding was deemed necessary. (The word “harm” won’t go away, however, as we shall see). Governments have to sell legislation to the public in the same way as companies have to sell their product to potential customers, and there are rhetorical techniques that become familiar over time. Here, the stratagem is a classic advertising maxim: use children. With the OSB, the main point stressed to the British media — now a governmental policy delivery system — is the safety of children, who are thus used as a virtual human shield to make commentators reluctant to criticize the bill. This is the same country that endorses drag queen story hour in infant-school classes.

But the OSB cannot distract us with the little ones; it is aimed at adults. The first intimation of special interest comes 23 pages into a 255-page document, in Section 12, “Adults’ risk assessment duties”, which looks at the following:

5d. The level of risk of harm to adults presented by priority content that is harmful to adults which particularly affects individuals with a certain characteristic or members of a certain group. [Italics added].

This category will soon pull to the front of the pack of priorities, and the criteria for group membership will require close scrutiny as it is not inventoried. The issue of who might potentially be harmed is left vague:

“Section 18, 6b: “A member of a class or group of people with a certain characteristic targeted by the content.”  [Italics added].

Does this mean that if I go to a Morris Dancing Facebook page and tell them they look stupid in those bells and flowery hats, I have harmed them by the criterion above? We are entitled to expect definitions of these groups and characteristics. We do not get them. We’ll look instead at what might harm these characteristic groups, and at what form that harm might take.

It is always worthwhile, in the UK at least, to look at already existing laws which cover the same area and see if the new legislation has extended powers already in place. With the OSB, we can go back to two legislative instruments which both cover much of the same ground, and show that the OSB, in terms of its capability to repress free speech, has had what we might call “gain of function”.

The OSB includes many things that are already illegal, but these are distractions from the online activity the government is actually going after, and how they intend to close it down. Dan Milmo is Global Technology Editor at The Guardian, and in a piece on the OSB he notes that it has been revised from its draft version to make clearer exactly what it is that is being criminalised, or at least having its criminal status aligned with online communication. As he writes;

The DCMS (The Department for Digital, Culture, Media and Sport) has published an updated list of … content, which includes: revenge porn; promoting suicide; people smuggling; drug and weapons dealing; hate crime; fraud; encouraging suicide.

They seem particularly keen on suicide, mentioning it twice. The Department for Digital, Culture, Media and Sport, incidentally, covers four areas which are pure private sector. The government should have nothing to do with them apart from ensuring financial probity.

It seems to me that these categories are covered by the Public Order Act of 1986, which states that an offence has been committed if a person “displays any writing, sign or other visible representation which is threatening, abusive or insulting”.

But it is the second category which introduces what we might call “usable ambiguity”. A new offence, the paper states

…will make it easier to prosecute online abusers by abandoning the requirement under the old offences for content to fit within proscribed yet ambiguous categories such as ‘grossly indecent’, ‘obscene’ or ‘indecent’. Instead it is based on the intended psychological harm, amounting to at least serious distress, to the person who receives the communication, rather than requiring proof that harm was caused [Italics added].

This last sentence dispenses with “proof” of “proscribed yet ambiguous categories” and shifts its ground instead to the even more ambiguous category of “psychological harm”, which does not require any proof other than the perception of the individual.

Again, I thought this was already covered, this time by the Malicious Communications Act of 1988, but in fact this is a perfect example of re-engineering legislation. The 1988 Act finds an offence has been committed if, firstly, a communication has been sent via media which include electronic transmission and containing the following:

i. A message which is indecent or grossly offensive.

1. A threat, or

iii. Information which is false and known or believed to be false by the sender.

Although the 1988 Act goes on to consider the causing of “distress or anxiety to the recipient”, this reaction is measured against what the OSB is calling “proscribed yet ambiguous categories” fit only to be discarded. The checks and balances formerly provided by legal definition are thus being replaced by the unquantifiable measure of “psychological harm” which requires no proof. As always in these times of destabilization, emotio is allowed to outrank ratio.

The OSB specifically and explicitly does away with defined categories, and we are left in the now familiar situation of the perception of grievance, upset, or threat by the receiver of the communication rather than the weighing of these responses against existing objective categories whose presence can be proved or otherwise in a court of law. What is known as “standpoint epistemology” is now present in legislation passed by the mother of all Parliaments.

The British would be used to this had they paid more attention to 1999’s Macpherson Report on the death of Black London teenager Stephen Lawrence. This report stated that any incident is deemed racist if the “victim” felt it to be so, or any third party. Presumably this third party could be your protective mother or another gang member. It’s all about how people feel about things, not what they are and are agreed to be.

The whole idea of replacing objective evidence of harmful online content with subjective perception and its attendant degree of psychological harm makes meaning rudderless and subject to whim. What if I were to write a barbed email to my ex-girlfriend, rich in expletives and full of truths aggressively expressed, and she read it and snorted with laughter, pausing only to have a good laugh about the email with her new boyfriend before deleting it? As I intended to cause distress, have I committed a crime even though none occurred? Or suppose my email was mild and rather affectionate, although it did inform my ex that I had slept with her sister. Does she then put on her tragedienne mask and go out to look for a police station (if she can find one in the UK) to report a hate crime and online abuse, because she is so upset? If emotio is given precedence over ratio when crafting legal legislation, then the criminal law becomes mere mood music.

The government’s wily use of language throughout the passage of the OSB is, as always, worth forensic inspection. Nadine Dorries, boss of the CDMS during the early stages of the bill and described rather appropriately as “Digital Secretary”, wrote the following:

This government said it would legislate to make the UK the safest place in the world to be online while enshrining free speech.

Fitting, really. A shrine is where people gather to remember the dead.

As well as the strategic vagueness of “psychological harm” or, as the press release also phrases it, “ruining people’s lives” (the life of a sensitive plant on social media doesn’t take much to ruin it), there is a very explicit type of online Thoughtcrime which interests the new lawmakers. Here, as well as seeing what worries the government as a narrative-spoiler, we see every ideologue’s old and trusted friend: moral equivalence.

The new communications offences will strengthen protections from harmful online behaviours such as coercive and controlling behaviour by domestic abusers; threats to rape, kill and inflict physical violence; and deliberately sharing dangerous disinformation about hoax Covid treatments.

Just look at the company kept by those anti-vaxxers! Rapists, killers and wife-beaters.

Many on the Right are frustrated that a nominally Conservative UK government should come down so hard on free speech, something that should be a core principle for them. But why should they care about the loss of such a liberty when it is the only luxury they can’t themselves enjoy? Three categories mentioned in the early-stage OSB as beneficiaries of the protection the Bill seeks to afford are MPs, celebrities and footballers. These people have no freedom of speech, far less than we little people do, and the Klieg lights of the media are trained on them at all times for potential gaffes or hasty Facebook posts. Of course, they don’t care if the peons go to jail for voicing an opinion. MPs have to spend every day clinging to the guard rail of the gravy train, scared to death that they might tweet the wrong thing and lose their grip.

Then there is the question of messaging, and the bill aims to end double-ended encryption because, as you have doubtless guessed, this creates “a safe haven for paedophiles”. Won’t someone think of the children? We will be advised to do that while government turns its attention to its real quarry, adults.

Quite apart from anything else, encryption is a feature which attracts users, and if your business niche loses its USP (unique selling point, the grail of marketing), then you are just another provider duking it out with the others, who now have everything you have. But more importantly, encryption is essential for many people in these Stasi-esque times. I use an encrypted service because I have it on good authority that young and zealous social justice warriors frequently work for at least one major email provider, and are not above cancelling accounts for Wrongthink found while they rifle through your private correspondence, or at least correspondence you thought was private.

Media Coverage

British press coverage has been interesting through the course of the OSB’s passage through parliament. Britain’s Daily Mail is one of the leading newspapers in the world now, largely because they adapted to online publishing quicker than their competitors. They are also deemed “Right-wing” by the Left, and always have been. The Mail made some noise about the dangers of the OSB during its early readings in 2022, but the downside pieces tailed off in Spring of this year, to be replaced by features by and about women worried about their children’s potential misadventures online. The last piece the Mail ran on the subject had the headline: “Becoming a mother has convinced me we MUST protect children from the ‘Wild West’ of social media”. The piece was written by Michelle Donelan. Ms. Donelan is not a journalist by trade, but rather Britain’s Technology Secretary, and thus in charge of the OSB. As I said earlier, government has to package and sell legislation like any other consumer good, and the British MSM double as their PR department.

Enforcement

Finally, the government has the problem of enforcement, and for that it has weaponized the Office of Communications (OfCom). This body, among its many other duties, oversees political partiality in broadcasting, which generally amounts to going after the likes of GB News — as I wrote about here at Occidental Observer — while giving the BBC a pass on everything. But now they are free to roam social media looking for suspicious ideas too freely expressed.

Here is confirmation, if such were needed, that big tech are now essentially governmental sub-contractors, very powerful NGOs to which the political class has outsourced enforcement — malicious examples of what the British used to call PPEs, or public/private enterprises. Big tech is now the Man from MiniTru. And the OSB is also a flick of the riding-crop on the rump of big tech to make sure it does what it is told:

Previously the firms would have been forced to take such content down after it had been reported to them by users but now they must be proactive and prevent people being exposed in the first place.

That’s quite a statement. A government is telling private companies not to listen to its audience, but to listen to the government. This is how soft totalitarianism hardens.

It might be assumed that the battle for free speech is being fought on level terrain on both sides of the Atlantic Ocean. It is not. While America still has the First Amendment woven into the very origins of its founding constitution, the United Kingdom has no such thing, and is about to add to its own body of regulatory law in less libertarian ways. The Magna Carta is often invoked as the British equivalent of the First Amendment, but this is wishful thinking once you see the denuded state of that founding document. Of the original 63 clauses present when King John signed Magna Carta in 1215, 59 have been repealed. The only important one left states that the government can’t throw you in jail without a trial. What the current government is doing to get round that is to widen the criteria of what can land you in court with the Crown as your opponent.

Conclusion

The OSB is a legislative instrument essentially intended, despite its pretensions, to police social media. Policing speech (or writing, if expressed online) is interesting in the UK. The fact that the actual British police are more likely to be found snooping online or participating in a gay pride march than doing any actual policing is duly noted, but this legislation will empower the state literally to act as commissars of what is said online, and by extension what is thought. It’s okay to like the British Blair — not Tony Blair but Eric Blair (aka George Orwell, which was a pen-name), but he must be lying in an unquiet grave.

The OSB is being presented as the benevolent state guarding its children from the predations of malevolent parties, but its own malevolence will be reserved for adults who speak out of turn. And this type of online infraction no longer leads merely to account suspension or deletion, but in some cases to jail.

We are used to Orwell’s 1984 and Huxley’s Brave New World being held up as a mirror to our current predicament. But there is a third novel in Britain’s dystopian trilogy. In Anthony Burgess’ A Clockwork Orange, a politician visits a jail to look for a subject for the Lodovico treatment which is designed to cure the offender of the impulse to violence. The reason the minister wants prisoners released safely back into society, and something of the sort is already happening in the UK, speaks to us: “Soon we may be needing all our prison space for political prisoners”.