My Lords, I regret I was unable to be present in Committee to deliver my speech about the chilling effect that the present definition of illegality in the Bill will have on free speech on the internet.
I am still concerned about Clause 173, which directs platforms how to come to the judgment on what is illegal. My concern is that the criterion for illegality, “reasonable grounds to infer” that elements of the content are illegal, will encourage the tech companies to take down content which is not necessarily illegal but which they infer could be. Indeed, the noble Lord, Lord Allan, gave us a whole list of examples of where that might happen. Unfortunately, in Committee there was little support for a higher bar when asking the platforms to judge what illegal content is. However, I have added my name to Amendment 228, put forward by the noble Lord, Lord Allan, because, as he has just said, it is a much less radical way of enhancing free speech when platforms are not certain whether to take down content which they infer is illegal.
The deletion of part of Clause 173(5) is a moderate proposal. It still leaves intact the definition for the platforms of how they are to make the judgment on the illegality of content, but it takes out the compulsory element in this judgment. I believe that it will have the biggest impact on the moderation system. Some of those systems are run by machines, but many of the moderation processes, such as Meta’s Facebook, involve thousands of human beings. The deletion of the second part of Clause 173(5), which demands that they take down content that they infer is illegal, will give them
more leeway to err on the side of freedom of speech. I hope that this extra leeway to encourage free speech will also be included in the way that algorithms moderate our content.
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Earlier in the Bill, Clause 18 lays out, for all services, the importance of protecting users’ rights to freedom of expression, and there are various duties of assessment for large companies. However, there is not enough in the Bill which builds freedom of expression into the moderation capacity of the platforms. Alan Rusbridger, a member of the Facebook Oversight Board, gave evidence to the communications Select Committee inquiry into freedom of expression online. He said:
“I believe that freedom of speech is a hugely important right … In most judgments, I begin by thinking, ‘Why would we restrict freedom of speech in this particular case?’”.
Evidence was also given that many moderators do not have a background in freedom of expression and are not completely conversant with the Article 10 rights. The amendment will allow moderators to think more about their role in erring on the side of freedom of expression when deciding on the illegality of content.
There has been much discussion, both in Committee and on Report, on protecting freedom of expression, but not much movement by the Government. I hope that the Minister will use this small amendment to push for draft codes of practice which allow the platforms, when they are not sure of the illegality of content, to use their discretion and consider freedom of expression.