We learn today that Rt Hon Nadine Dorries, former MP, Culture Secretary, champion of the Online Safety Bill, and the Member of Parliament who formally introduced the law in the House of Commons, has today called for the now-enacted Online Safety Act to be repealed “in its entirety.”
This is an absolutely titanic political development.
The change in posture comes on the heels of TikTok’s OSA program being used to censor Zia Yusuf, the Reform Party’s Shadow Home Secretary, in a party political announcement on immigration policy. I was asked to speak about this on GB News on Sunday night.
Ms. Dorries went on GB News today to explain the reasons for her reversal. Chiefly, there is widening recognition across British society that the OSA is being used to censor the legitimate political speech of adults. Dorries suggests that the OSA should be repealed and replaced with a Bill that is focused on the protection of children, instead:
As it happens, such a bill exists – the UK Freedom of Speech Bill that my colleagues and I proposed over at the Adam Smith Institute last month.
I don’t have a ton of time to get into the details today, so I will have to be brief. This is how the Freedom of Speech Bill can function as the replacement to the UK OSA Regime:
- Clause 20 of the Bill replicates the mandatory reporting structures in the current Online Safety Act and (in the U.S.) 18 U.S.C. § 2258A.
- By harmonizing to U.S. free speech standards, the UK will make it considerably easier, as a political matter, enter into data sharing and cross-border cooperation agreements, like CLOUD Act agreements, with the United States.
The CLOUD Act agreement between the U.S. and the UK is currently limited to so-called “serious crimes” – crimes that are punishable by up to three years’ imprisonment. From the U.S. side, requests that infringe on U.S. free speech principles are not permitted; from the UK side, requests that could result in the death penalty are not permitted. Cooperation could be expanded.
Given the current structure of English law, it is difficult for the Americans to know whether English requests infringe U.S. speech principles (and, given the plain language of English law, they often will); given the political environment in the United States, it is unlikely U.S. politicians will be inclined to grant UK law enforcement more expansive access to data held on American servers.
If British police know, up front, that the British legal regime is harmonized to the First Amendment (and therefore their CLOUD Act requests won’t violate the First Amendment), you have just removed a huge obstacle to British police getting comfortable sending those requests.
And the Freedom of Speech Bill is designed to do exactly that. If enacted, it would substantially harmonize the UK’s online communications regime with the United States’ online communications regime, by both repealing inconsistent legislation and replacing it with consistent, speech-protective legislation.
See Schedules 1 and 2 of the proposed Bill which, with respect to speech made on the Internet, replace the provisions of Section 127 of the Communications Act 2003, the Malicious Communications Act 1988, Sections 179 and 181 of the Online Safety Act 2023, and much of the Public Order Act 1986.
If British police know the tool will work, they’ll use it. That’s not the case today with a lot of online crime which is prosecuted under the Public Order Act 1986, the Malicious Communications Act 1988, Section 127 of the Communications Act 2003, and the Online Safety Act 2023 itself – none of which would survive constitutional scrutiny in the United States.
Cooperation of this type means that that UK-origin law enforcement requests will get faster responses from U.S. companies. Faster data production means faster arrests. Faster arrests means fewer bad guys on the Internet.
Ofcom is a censorship agency, not a law enforcement agency. There’s a big difference between those functions.
Compare that to Ofcom’s approach, which has absolutely nothing to do with taking bad guys off the street, and absolutely everything to do with regulating what adults in the UK are allowed to see.
When an agency’s mandate is to control what people can see online, that agency is not a law enforcement agency. It is a censorship agency. For this reason the Online Safety Act is, quite correctly, described as a censorship law.
The “Online Safety Act” approach is not a good way to keep people safe online. The best way to keep people safe online is not to control what is said online. It is to make sure that criminal conduct online has kinetic consequences offline – chiefly, arrests.
I wrote about the differences between the “law enforcement-first” and “censorship-first” approaches to online safety in 2019, when the Online Safety Bill was little more than a white paper full of bad ideas.
As I wrote in the post:
“Legislative proposals that put censorship front-and-center ignore the fact that there have always been, and there will always be, high time-preference individuals living among us who are willing to break our social compact irrespective of the long-term personal cost to themselves.
“Every day, in every modern country, our fellow citizens rob people at knifepoint/gunpoint in our cities. They steal. They beat their children. Our fellow citizens do horrible things, to each other and even to themselves, with the foreknowledge that doing those horrible things will likely result in legal sanction. Unlawful threats have been part of that equation since time immemorial. Banning publishing platforms for the sins of a few sporadic users would be like banning sidewalks because muggers rob people on sidewalks.
“In terms of finding workable solutions, the answer is not to ban the publishing platforms but rather to make our law enforcement systems mutually intelligible. Such an approach will protect honest citizens and not erode civil liberties while also rendering law enforcement a more credible deterrent to violent online threats.
“By raising the baseline for free speech rights overseas, foreign governments would make it considerably easier to obtain information from U.S. companies. What they would give up, in exchange, is the ability to prosecute those who espouse uncomfortable wrongthink at home.”
That was seven years ago; I’ve been grinding on this problem for a long time.
Certainly, maximizing free speech while also maximizing the ability of the police to take down bad guys is a far better public safety outcome than the current approach – one where Ofcom pretends that the First Amendment doesn’t exist, and has resorted to conduct which generates headlines and trade friction with the U.S. but not a lot in terms of public safety outcomes.