Law prof: ‘Online Safety Bill must not restrict legitimate free speech’

A law professor and former MSP has warned the Government its attempts to make the internet safer “may do more harm than good”.

Adam Tomkins, Professor of Public Law at the University of Glasgow School of Law and a former MSP for Glasgow, examined the recently published Online Safety Bill in his column for The Herald.

He said that while there are serious concerns about what takes place online, the Government’s approach “has all the hallmarks, however, of a moral panic, rather than of reasoned policy”.

Identifiable harm

Tomkins said: “Since John Stuart Mill wrote about it in the middle of the 19th century, we in Britain have always understood that free speech is fundamental, yet not absolute. Freedom of speech is a basic right and, ordinarily, our speech should in no way be censored by the state.

“The exception, of course, is when our speech causes identifiable harm – and this ‘harm principle’ was JS Mill’s great insight.”

He explained that the principle of harmful words can be easily defined and the misuse of words in this way may “rightly be subject to criminal sanction”. This would include using words which could cause imminent injury, such as shouting “Fire!” in a crowded theatre and causing a panic which could result in a crush, or words that cause fear of imminent injury by threatening someone.

ordinarily, our speech should in no way be censored by the state

But, he continued, “when statutory regulators are given powers to police speech that is not itself unlawful, or criminal, or threatening, but merely ‘otherwise harmful’ we have moved decisively away from a legal framework based on free speech, towards a law based on the licensing and censoring of speech. And that is what the Online Safety Bill does.”

‘Impermissibly vague’

The law professor said: “No one has any problem with the proposition that criminal speech should not appear on social media platforms. I cannot use Twitter to threaten you any more than you can use Facebook to send a menacing message to my family.

“Such posts would be criminal offences – and quite right too. Sending threatening or menacing message in the post via the Royal Mail would likewise be an offence – there is no special treatment for the online world here.

“And if that is where the Bill stopped, it would surely be uncontroversial. But it goes a great deal further, subjecting social media websites to new regulation, which will be undertaken by Ofcom, on the basis of as yet unspecified ‘harms’ which are not themselves unlawful.”

He said this is “impermissibly vague”, citing existing concerns about social media censorship, and concluded: “Parliament should think long and hard before enacting into law a new regulatory regime for online speech that will make this even worse.”

Also see:

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