We can't stop racism by censoring legal speech online

The racism directed against members of the English football team since last night is despicable. These players made it to a major tournament final for the first time in over five decades and fought valiantly. Their success should be celebrated, not responded to with hatred.

The widespread condemnation of racism, from across the political spectrum and the country, is to be welcomed. But those who are seeking to hijack this racism for their grubby political ends should be ashamed. Rather than focusing on the perpetrators of abusive behaviour, ambitious politicians are blaming their favorite boogeyman: social media companies.

Round up the usual scapegoats

In the hours since England’s loss, politicians have redoubled their efforts to promote the draft Online Safety Bill, the Government’s attempt to make the UK the “safest place in the world to be online”. The Culture Secretary, Oliver Dowden, has said the Online Safety Bill will force companies to up their game against racist abuse through threats of hefty penalties and fines.

Except that’s not quite how it works. The proposed Online Safety Bill goes much, much further than simply obliging companies to address racist abuse. It will create a so-called “duty of care” on technology companies - whether that is the biggest social media giant or the smallest startup — to detect and remove not just unlawful content, but also any kind of content which could be considered a subjective harm. In practice, this could include political dissent and criticism of the government — such as this article you are reading right now. The power to define what is harmful will rest with Ofcom, who will be politically directed by the Culture Secretary to decide what speech is allowable online.

There are millions of users and billions of pieces of content. Speech and meaning is complex. Even automated systems, including “safety tech”, cannot detect every utterance of speech which might cause a subjective harm. What they do detect inevitably leads to removal of innocent posts, including satire. This was what happened when Germany introduced the NetGZ law, which targeted already illegal hate speech, but resulted in the suspension of a German satirical magazine.

Harassment is already unlawful and the social media companies have every incentive to remove it from their platforms. The simple fact is that this is extremely difficult. For as long as we allow people to express themselves online, some will abuse that right. So practically speaking, the Bill itself will do nothing to prevent abuse.

A chilling effect on your free speech

Not to be outdone, Labour’s Jo Stevens, the shadow culture secretary, has called for “criminal trials and imprisonment” for senior executives of online services. Stevens claimed that these provisions “might have stopped” the racist abuse against football players. This is absurdly naive. Jailing Facebook’s Nick Clegg will not address deep-rooted causes of racism and social division. Nor will getting “tough” on social media companies change the way some bad actors behave online.

What it will mean, however, is a chilling effect on your free speech and the censorship of speech online which is legal offline, as companies feel they have no choice but to remove what may be perfectly legal and harmless content out of fear of personal arrest. It will mean companies removing anything that could have a negative psychological impact on anyone for any reason.

Beyond the users who will have their speech censored by people who don’t want to be thrown into a police car, the ultimate losers from this legislation will be Britain's start-up ecosystem. The Bill stands poised to create extraordinary compliance burdens on smaller tech companies that will hand a gift to the larger social media companies who can afford to meet them. This is why Justine Roberts, CEO of Mumsnet, warned that the proposals would make it much harder to create services where people can speak their minds, share their concerns, or discuss controversial issues. This includes the likes of transgender rights, Brexit or Covid.

At this point you are probably wondering what any of this has to do with the disgraceful racist attacks on football players. The simple answer: it doesn’t. The Online Safety Bill is not the solution that government wants you to believe it is. And it’s certainly not the cure for issues of racism and social division whose roots lie much deeper.

Matthew Lesh is Head of Research at the Adam Smith Institute and Heather Burns is the Policy Manager at the Open Rights Group