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“A wide range of policy analysts, civil rights groups, academics, lawyers, free speech campaigners and industry representatives have [suggested] ways of mitigating some of the grave threats to free speech in this Bill … I have, at times, felt that those concerns were batted away with a certain indifference,”  Baroness Claire Fox told the House of Lords on Monday.

“I hope the Government will listen and consider how to avoid the UK ending up having the most restrictive internet speech laws of any Western democracy,”  she said.

This week alone, Baroness Fox has raised her concerns twice in the House of Lords about the proposed UK Online Safety Bill.  As she noted on Monday, there has been little attention paid to it by the Lords. “I assumed that there would be packed Benches – as there are on the Illegal Migration Bill – and that everybody, including all these Law Lords, would be in quoting the European Court of Human Rights … I assumed there would be complaints about Executive power grabs and so on. But it has been a bit sparse,”  she said.

She noted that the UK has a long history of boasting that it is the home of liberty and adopts the liberal approach that being free is the default position. “That free speech and the plurality and diversity of views it engenders are the cornerstone of democracy in a free society.”

A comprehensive piece of law, such as the Online Safety Bill, that challenges many of those norms, deserves thorough scrutiny through the prism of free speech, she said.

Below is a video clip extracted from her speech in the Lords on 10 July 2023.  You can watch Baroness Fox’s full speech on Parliament TV HERE, beginning at timestamp 18:59:36, and you can read a transcript in the Hansard HERE.

🤐"I hope the Gov't will listen & consider how to avoid the UK ending up having the most restrictive internet speech laws of any western democracy" – @Fox_Claire

Yesterday Peers debated plans to give state-backing to Big Tech’s censorious Ts&Cs within the #OnlineSafetyBill pic.twitter.com/eK77oit8Dk

— Big Brother Watch (@BigBrotherWatch) July 11, 2023

Baroness Fox has put forward many amendments to the Bill and on Monday she highlighted five of them. This is to ensure that freedom of expression is not reduced to an abstract, she said.

She pointed out that Section 5 of the Bill would require social media companies to prevent users from encountering content that includes “threatening or abusive words or behaviour, or disorderly behaviour” that is likely to cause “harassment, alarm or distress.”  She gave an example of how this is subjective and as such can lead to a stifling of freedom of expression:

I am not sure whether noble Lords have been following the dispute that broke out over the weekend.

There is a film on social media doing the rounds of a trans speaker, Sarah Jane Baker, at the Trans Pride event screaming pretty hysterically “If you see a TERF, punch them in the effing face” – and I am being polite.

You would think that that misogynistic threat would be the crime people might be concerned about, yet some apologists for Trans Pride claim that those women – TERFs such as myself – who are outraged, and have been treating the speech as saying that, are the ones who are stirring up hate.

Asking service providers, or indeed algorithms, to untangle such disputes can surely lead only to the over-removal of online expression.

Online Safety Bill Volume 831: Debated on Monday 10 July 2023, Hansard

Section 5 could also catch content that depicts conflict or atrocities, such as those taking place in the Russia-Ukraine war or lead to the removal of posts by people sharing stories of their own abuse or mistreatment on internet support forums.

Another point Baroness Fox highlighted on Monday was that providers would have to remove or restrict content that, for instance, encourages what is called “disorderly behaviour” that is likely to cause alarm. “Various organisations are concerned that this could mean that content that portrayed protest activity, that might be considered disorderly by some, was removed unless you condemned it, or even that content which encouraged people to attend protests would be in scope,” she said.

In yet another example to demonstrate how the Bill could be used to restrict free speech, Baroness Fox spoke of the British Board of Film Classification’s (“BBFC”) mobile classification network –  an agreement with mobile network providers that advises mobile providers on what content should be filtered because it is considered suitable for adults only.

This [BBFC] arrangement is private, not governed by statute, and as such means that even the weak free speech safeguards in this Bill can be sidestepped. This affects not only under-18s but anyone with factory settings on their phone. It led to a particular bizarre outcome when last year the readers of the online magazine, ‘The Conservative Woman’, reported that the website was inaccessible. This small online magazine was apparently blacklisted by the BBFC because of comments below the line on its articles. The potential for such arbitrary censorship is a real concern, and the magazine cannot even appeal to the BBFC, so I ask the Minister to take this amendment back to the DCMS, which helped set up this mobile classification network, and find out what is going on.

That peculiar tale illustrates my concerns about what happens when free speech is not front and centre, even when you are concerned about safety and harm.  I worry that when free speech is casually disregarded, censorship and bans can become the default, and a thoughtless option.

Online Safety Bill Volume 831: Debated on Monday 10 July 2023, Hansard

Yesterday, Baroness Fox raised concerns about the Online Safety Bill again in the House of Lords. “If too much of the Bill is either delegated to the Secretary of State or open to interference in relation to the Secretary of State and Ofcom, who decides what those priorities are?” she asked.

I am not convinced that saying that the Secretary of State can decide not just on national security but on public safety and public health is reassuring in the present circumstances … We had a very recent example internationally of Governments leaning on big tech companies in relation to Covid policies, lockdowns and so on, and removing material that was seen to contradict official public health advice – often public health advice that turned out not to be accurate at all. Noble Lords will know that censorship became a matter of course during that time, and Governments interfering in or leaning on big tech directly was problematic.

I asked [the Minister] why Ofcom could not make freedom of expression a priority, with codes of practice so that it would have to check on freedom of speech. The Minister said, “It’s not up to me to tell Ofcom what to do”, and I thought, “The whole Bill is telling Ofcom what to do.”

I had another exchange with the present Secretary of State … in which I said, “Why can’t the Government force the big tech companies to put freedom of expression in their terms and conditions or terms of service?” The Minister said, “They are private companies; we’re not interfering in what they do”. So, you just end up thinking, “The whole Bill is telling companies that they’re going to be compelled to act in relation to harm and safety, but not on freedom of expression.”

What that means is that you feel all the time as though the Government are saying that they are outsourcing this to third parties, which means that you cannot hold anyone to account.

Online Safety Bill Debated on Wednesday 12 July 2023, Hansard

You can watch Baroness Fox’s speech in the House of Lords on 12 July below or on Parliament TV HERE, beginning at timestamp 16:30:52, and you can read a transcript in the Hansard HERE.  You can find a list of all speeches made by Baroness Fox HERE.