Freedom of Expression (Communications and Digital Committee Report)

Lord Allan of Hallam Excerpts

Thursday 27th October 2022 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I shall seek not to go over. I congratulate the noble Lord, Lord Gilbert, and the committee on the report. It is very timely to debate it today—the day on which the EU’s Digital Services Act comes into law, and as we ourselves eagerly anticipate the Online Safety Bill. I want to make a short contribution on the basis of having spent a decade inside one of the platforms, making decisions about how to manage content.

We are here with the Online Safety Bill and the Digital Services Act because we, the politicians, do not trust private companies to make decisions about their platforms. The noble Lord, Lord Gilbert, outlined some of the reasons why that trust has evaporated. The position now is that we are taking power to ourselves to tell platforms how to manage content, as a condition of operating in the UK market, and we will delegate the day-to-day enforcement of those rules to our chosen regulator, Ofcom.

An important question that arises from this, which the report rightly focuses on, is whether we should instruct Ofcom to consider only illegal speech or to bring in a wide range of other types of harmful speech. Because of the concerns about whether the regulator should enforce against only legal speech, there is now an interest in whether the definitions of “legal” and “harmful” could be more closely aligned. Today, I want to make a necessarily condensed argument for why this would be a mistake, both as a matter of principle and as a practical matter.

Turning first to the principle, we often hear calls to align online and offline standards. In our real-world interactions, we do not rely solely on the law to manage speech behaviour; this is to build on some of the arguments made by the noble Baroness, Lady O’Neill. To take an example, I could cover myself in swastikas and hand out copies of Mein Kampf entirely legally in the United Kingdom. There is no law that prohibits me. Yet were I to try to do that in most public spaces, such as by going to a football ground, I would be stopped on the basis that the speech norms prohibit my doing that, rather than because I had broken the law. We have a gap between what is unacceptable speech and what is illegal speech. This is not a bug but a feature of our speech norms in the United Kingdom.

It would be a mistake to try to make all unacceptable speech illegal or, equally, to deem all legal speech acceptable and try to force platforms to carry it. We are left with a sustained situation where there will be a gap between what we as a population believe is acceptable and what the law outlines, and that is right. We want to keep the legal prohibitions—the criminalisation of speech—as minimal as possible.

Turning to the practical considerations, which the noble Lord, Lord Gilbert, again talked about, it is sometimes assumed that there is a bright line between legal and illegal content. My experience over many years is that there is no such bright line but many shades of grey. Again, to illustrate this with a specific example, many people would post on social media pictures of Abdullah Öcalan, the leader of the PKK, a proscribed terrorist organisation in the UK. Now, when someone posts that picture, are they supporting the peace process he is engaged in in Turkey? Are they supporting him as a terrorist? Are they supporting his socialist ideals or the YPG in Syria, which also looks to Abdullah Öcalan? There is no way to understand the purpose and intent from that photo, so you have to make a judgment. At one end of the spectrum, you could say, “Look, I am so worried about terrorist content that I am going to take down every picture of Abdullah Öcalan”, knowing that you will be taking down many forms of legal expression. At the other end, you could say, “I will leave them all up, and if I do so I know that I will be permitting some expressions of support for terrorism, or some illegality to take place.” There are of course many points in between.

We have an opportunity now to shift where those judgments are made in the new structure outlined in the Online Safety Bill. Platforms will have to respond to guidance and codes of conduct precisely on these issues of how they make judgment and we, as Parliament, will have a role in setting that guidance and those codes and of conduct, as Ofcom will bring them to us. We are moving into a world where decisions will not necessarily get any easier but will no longer be the sole preserve of the platforms. It is a benefit for public accountability that there will be an official government or parliamentary view expressed through Ofcom’s codes of conduct. Equally, we as Parliament—or the British establishment—will be responsible in future for the decisions made around content moderation. I fear that I may have jumped out of the platform frying pan into the regulatory fire by engaging from this side of the argument, but the Online Safety Bill will be a significant improvement.