Do we really want to give internet giants more power over our speech?

Civil liberties used to be more of a left-wing issue than a right-wing one. The defence of free speech, as part of the whole, likewise. It was the left that campaigned against the old censorship laws, and it was the Labour Party that legislated to make the European Convention on Human Rights enforceable in British courts.

This made sense because it was the establishment and the powerful who seemed to have an interest in restricting free expression in case it should allow persuasive demands for the dismantling of their power. Long before Tony Blair came to office, though, things had started to become complicated. The fatwa against Salman Rushdie in 1989 split the left between free speech absolutists and those who saw The Satanic Verses as an attack on the oppressed.

Then, after Labour came to power and did good civil liberties things such as the Human Rights Act and the Freedom of Information Act, it turned out that Blair himself didn’t believe in any of it. The Labour government set off on a long march back down the liberal hill, as Blair tried to legislate for identity cards and then for anti-terrorist measures that horrified what had now become a civil liberties establishment. Indeed it horrified much of his own party. The former prime minister was still at it yesterday, incidentally, telling my students at King’s College London that biometric ID is even more necessary now than it was when he was in Downing Street 15 years ago.

The next big battle over civil liberties, and specifically over free speech, will not be over an identity database, although I am sure that will resurface soon, but over the Online Safety Bill, which was published today.

This bill was originally designed to get the law to catch up with technology, giving Ofcom – the broadcast regulator – powers over the big internet companies, who are essentially broadcasters and publishers themselves. One of the main things the bill will do is to regulate pornographic websites and make it harder for children to gain access to them. This is relatively uncontroversial: age verification has been required by law for gambling websites for some time.

Since the bill has gone through its various draft stages, however, it has become what is known as a “Christmas tree bill” in the United States. That is, ministers have hung on it all kinds of measures designed to respond to the “something must be done” tendency of a lot of media reporting.

The bill now includes measures requiring internet companies to prevent their platforms being used to promote harmful things. Several new harms have been added during the pre-legislative period, including online death threats, disinformation about Covid cures and encouragement of suicide. On the other hand, the bill contains various protections for free speech, requiring companies to protect “democratically important” content, and excluding the websites of established media companies.

Left and right may not be the best terms for defining this debate, but it would take another thousand words to define alternative terms, so let us say that the bill has been attacked from “the left” for failing to force internet companies to do more to censor hate speech. Parts of “the left” want to see more protections for specific minorities, and other parts are opposed to the exclusion for newspaper websites. Hacked Off, the campaign that arose out of the phone hacking scandal, has accused the bill of “putting the rights of the press above those of the public”.

The bill has also been attacked from “the right” for being an illiberal attempt to restrict freedom of expression. The Adam Smith Institute, for example, calls it an “illiberal, incoherent, anti-innovation mess”, and says that it is wrong in principle to try to censor some kinds of speech which is “harmful” but not necessarily illegal.

The biggest problem that some on both the “right” and the “left” see is that this kind of uncertainty will lead to the big internet companies censoring any material that is in doubt, or about which a loud enough minority makes a fuss.

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John Woodcock, who was a Blairite MP until the last election (he now sits in the House of Lords as Lord Walney, a crossbench peer), said today that he was worried about the bill: “There is danger that platforms will respond to legal threat by defaulting to a super-cautious approach which stifles the freedom to challenge ideas that is vital to our liberal democracy.”

As an adviser to the government on political violence – and a swing voter between “left” and “right” – it is notable he has come down on the side of more free speech rather than less.

“We must not create an online culture where companies conclude the way to avoid ‘legal but harmful’ content is to avoid all controversy,” he said. “Contrary to popular conception, there may be financial incentives for the larger social media companies to adopt a safety-first approach.

“And many campaigners may celebrate cleansing platforms of any trace of distasteful material they assume are triggers or gateways to extremism. But I fear there may be severe longer term consequences of driving dissent further to the margins and stifling debate on mainstream platforms.”

I suspect he is right – I am, after all, a Blairite too. This is one of those issues where the old labels of left and right don’t help. But the old left would not have wanted to give the powerful internet giants legal incentives to infringe our fundamental human right to freedom of expression.