Online Safety Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 9th May 2023 Lords Chamber

The concept of harm, once expanded to include psychological harm, is subject to concept creep and subjectivity. The lack of definition was challenged by the Lords Communications and Digital Committee when it wrote to the Secretary of State asking whether psychological harm had any objective clinical basis. DCMS simply confirmed that it did not, yet psychological harm is going to be used as a basis for removing lawful speech from the online world. That can lead only to a censorious and, ironically, more toxic online environment, with users posting in good faith finding their access to services—access that is part of the democratic public square—being shut down temporarily or permanently, even reported to the law or what have you, just because they have been accused of causing psychological harm. The free speech elements of the Bill need to be strengthened enormously.

[Lord Hope of Craighead (CB)]

My Lords, my Amendment 63 is about the meaning of words. It was an interesting feature of the speech made by the noble Baroness, Lady Fox of Buckley, which we have just had the pleasure of listening to, that she slipped from time to time from the phrase “freedom of expression” to “freedom of speech”. That is not a criticism; it is very easy for one to treat these expressions as meaning the same thing. Others in this debate have done the same thing. I think that the noble Baroness, Lady Stowell, used “freedom of speech” sometimes, as well as “freedom of expression”. It is not a criticism; it is just a fact that we tend to treat the two the same.

However, the Government in Clause 18 have chosen to use the words

“freedom of expression within the law”.

My amendment draws attention to that feature. If we work our way through Clause 18, its purpose is to set out the duties about freedom of expression and privacy that are to apply in relation to the user-to-user services referred to in that clause. Clause 18(2) imposes on those providing user-to-user services

“a duty to have particular regard to the importance of protecting users’ right to freedom of expression within the law”

when deciding on and implementing safety measures and policies. Clause 18(8) provides a definition of the phrase “safety measures and policies”, which

“means measures and policies designed to secure compliance with any of the duties set out”

in previous clauses of the Bill. These extend to illegal content, to children’s online safety, to user empowerment, to content reporting relating to illegal content and content that is likely to be harmful to children, and to complaints procedures. So a balance has to be struck between giving effect to the right to freedom of expression within the law and performing the important duties referred to in the clause. As Clause 18(4) explains, when decisions are being taken about the safety measures and policies that are to be introduced or applied, there must be an assessment of the impact that they would have on the user’s right to freedom of expression within the law.

My amendment was prompted by a point made by the Constitution Committee, of which I am a member, in its report on the Bill. It suggested that the House might wish to consider whether, in the interests of legal certainty, the expression “freedom of expression” should also be defined for the purposes of this clause.

The committee referred to the fact that in its report on the on the Higher Education (Freedom of Speech) Bill, it recommended that that Bill should define the expression “freedom of speech”, which is what that Bill was talking about, by referring to Article 10 of the European Convention on Human Rights. I raised this issue by proposing an amendment to that effect in Committee on that Bill. On Report, a government amendment to achieve that was agreed to and, in due course, it was also agreed by the House of Commons. My Amendment 63 adopts the same wording as that used in the Higher Education (Freedom of Speech) Bill, and I suggest that it should be adopted here, too, in the interests of consistency and to provide the desirable element of legal certainty.

Although it appears in a different group, I think it is worth referring to Amendment 58 in the names of the noble Baroness, Lady Fraser of Craigmaddie, and the noble Lord, Lord Foulkes of Cumnock. It proposes the insertion of the words

“as defined under the Human Rights Act 1998 and its application to the United Kingdom”,

so it is making the same point and an additional one, which is this. We have to be very careful in this Bill to recognise that it extends to all parts of the United Kingdom, particularly in regard to the devolved Administrations in Scotland, Wales and Northern Ireland. Scotland is very active in promoting legislation dealing with matters of this kind, and it is rather important that we should define in the Bill what is meant by

“freedom of expression within the law”

in its application throughout the United Kingdom, lest there should be any doubt as to what it might mean in the other parts of this country—particularly, if I may say so, with regard to Scotland. The noble Baroness, Lady Fraser, may say more about this at this stage, although her amendment is in a different group, because it is very pertinent to the point I am trying to make about the need for a definition in Clause 18.

That is the reasoning behind the amendment, and I come back to the interesting feature that one tends to mix the expressions “freedom of speech” and “freedom of expression”, but it is important to anchor exactly why the Government chose to use the words

“freedom of expression within the law”

for the purposes of this clause.