ONLINE SPEECH

Protecting Democratic Content and the UK Online Safety Bill

The idea behind protecting ‘democratic content’ within social media providers is a thought-provoking one and shows how the UK is committed to protecting diversity of political opinion within democratic debate. It may be proven unworkable, though.

By Lucas Pinho Martins Nacif

June 6, 2021

For better or worse, social media companies such as Facebook possess a lot of control over our access to information. This can be illustrated by the proliferation of fake Covid-19 information spread through platforms such as Whatsapp to Facebook even taking the drastic measures of temporarily blocking news to Australians on its platform amid a dispute over a proposed law in Australia which would force it and Google to pay news publishers for content. In addition, social media companies are able to cut off a politician’s platform – for example, Donald Trump being banned by Twitter and suspended by Facebook and YouTube following the US Capitol riots in January. 

The UK recently unveiled the Online Safety Bill (“the Bill”), which proposes tough measures requiring social media companies and technology companies, among others, to protect online users. The Bill intends to combat illegal and harmful practices online, whilst also protecting freedom of expression and democratic debate. The Bill aims to address various aspects of ‘online safety’ and freedom of expression, though the purpose of this article will be to focus specifically on the Bill’s proposal to protect ‘democratic content’ on social media websites such as Facebook. This article will argue that although the proposed Bill presents potentially ground-breaking regulation over social media content moderation, it might prove to be highly unworkable and uncertain for the digital economy sector in the UK. 

Scope of the Bill

The Bill is broad in scope, having extra-territorial reach to services that have “links” with the UK (i.e. significant number of users based in the UK) and applying to internet services that allow users to share user generated content and providers of search engines. It also incorporates a tiered approach to the obligations placed on online platforms and services. The Bill envisages a three-tiered approach to regulation, with ‘Category 1’ services (user-to-user services, expected to cover popular social media sets such as Facebook) subject to greater regulation than service providers that fall under the other two categories. 

Despite the seemingly broad scope, however, the Government maintains that the proposed regulatory framework is proportionate, with fewer than 3% of UK companies falling within the scope of the Bill, as the Bill provides for a list of exemptions, such as email and telephony providers, and services managed by educational institutions that are already subject to regulatory frameworks that addresses online harm. 

Protecting democratic content and its shortcomings 

One of the various objectives of this proposed legislation is to uphold freedom of speech and expression by imposing a duty on ‘Category 1’ services to protect content of ‘democratic importance’. Clause 13(6) of the Bill defines ‘content of democratic importance’ in relation to Category 1 services as “regulated content” or “news publisher content” (as defined in clause 39 of the Bill) that “is or appears to be specifically intended to contribute to democratic political debate in the United Kingdom or a part or area of the United Kingdom”. 

Specifically, clause 13 imposes a duty for ‘Category 1’ services to have systems and processes in place which considers the importance of upholding “the free expression of content of democratic importance” when making decisions related to content moderation, such as taking down such content or suspending/banning a user for generating, uploading, or sharing such content. 

The Explanatory Notes of the Bill states that examples of “content of democratic importance” includes “content promoting or opposing government policy and content promoting or opposing a political party”. The Government’s press release shows that clause 13 of the Bill might have a significant impact for social media providers’ content moderation policies – for example, if a “campaign group…release[s] violent footage to raise awareness about violence against a specific group…[T]he [social media] company might choose to keep that content up, subject to warnings, but it would need to be upfront about the policy and ensure it is applied consistently”. 

Although the concept of protecting “content of democratic importance” might seem like a compelling solution to counter the ever-growing influence that social media companies have on political debate, this idea is subject to criticisms. Protecting political speech (whilst also being required to protect users against lawful but harmful content) will complicate how social media services shape their content moderation policies, as extremist groups could seek to “launder” their hate speech and abuse as “political opinion”, so that their hateful or abusive speech becomes “content of democratic importance”.

In addition, if the proposed Bill subsequently becomes legislation, and the duties imposed are either too uncertain or unworkable, this might backfire against the Government’s “unashamedly pro-tech” ambitions of creating an “inclusive, competitive and innovative digital economy for the future”, especially since the Bill intends on granting the Government’s telecommunications regulatory body, Ofcom, with a new enforcement powers to fine companies that fail to fulfil their duties of care – of up to 10% of a company’s annual turnover or £18 million (whichever is higher); see clause 85(4) of the Bill. 

Concluding remarks

The idea behind protecting ‘democratic content’ within social media providers is a thought provoking one and shows how the UK is committed to protecting diversity of political opinion within democratic debate (even if, it seems, the political opinion is “extreme”). However, there is a possibility that the duties imposed in the Bill might prove to be unworkable, which, combined with proposed enforcement powers to Ofcom, might be detrimental to the Government’s ambition of developing an innovative digital economy in the UK.

Given that this Bill was only recently introduced in draft form, much will depend on what happens when the Bill becomes subject to pre-legislative scrutiny by a joint committee of Members of Parliament, as well as the content of future Codes of Practice that Ofcom must publish to assist companies in complying with their obligations (see clause 29 of the Bill). 

Lucas Nacif is a Bar Vocational Studies candidate at City Law School and has recently completed his LLM at St Edmund’s College, University of Cambridge. He also holds a LLB degree from King’s College London. During his legal studies, Lucas has done internships in various commercial barrister chambers in London.