The new Online Safety Bill is set to criminalise causing 'psychological harm' to others online – expert Professor Paul Bernal explains what this actually means
The upcoming legislation threatens social media companies with fines of up to £18 million for failing to tackle abuse, but it also focuses on individual users – trolls who knowingly cause “psychological harm” online could be liable for jail time.
While similar offences currently exist in law – mainly relating to “indecent” or “grossly offensive” material – the focus will now be shifted onto the “likely psychological harm” caused by content, according to the Sunday Times.
A Government spokesperson said that: “We are making our laws fit for the digital age. Our comprehensive Online Safety Bill will make tech companies responsible for people’s safety. We are carefully considering the Law Commission’s recommendations on strengthening criminal offences.”
But the proposed additions to the bill appear vague, unworkable, and unlikely to be implemented in practise. For instance, how does the Government officially define a social media “pile on”, and if one were to occur with thousands of people, would they all face prosecution? To find out what this bill means, we spoke to Professor Paul Bernal, lecturer in Information Technology, Intellectual Property and Media Law at the University of East Anglia Law School.
Is there a way to define a “Twitter pile-on” in law? If it involves thousands of people, they can't all be jailed?
Professor Paul Bernal: Right now, there’s no definition of a ‘Twitter pile-on’ in law – and the stories suggesting that they’re going to legislate about them don’t give enough detail for us to be sure of what they really mean. The phenomenon is pretty clear though – it’s when a Twitter user encourages, enables or instigates a ‘mass attack’ on another Twitter user, typically by a ‘Quote Tweet’ with some kind of disparaging comment, and the result of that is a great many attacks upon the target – many far more abusive or aggressive than the initial disparaging comment.
The key is that the instigator of the attack needs to have a lot of followers, generally with a particular political or related perspective. The instigator won’t say anything particularly nasty – it’s the followers, those ‘piling on’ who say the nasty stuff. That means that the instigator can currently claim not to be doing anything wrong. They won’t be breaking the law themselves – even if their followers, the ones who pile on, may well break the law. Things like death threats, rape threats, offensive language and images can be part of the pile-on – but they won’t come from the instigator of the pile on.
So the instigator won’t be held to account?
Professor Paul Bernal: That’s where the big legal question comes in. If they actually want to deal with a pile on, they have to deal with the instigators, not those piling on. That means dealing with big accounts, ‘blue tick’ accounts, often high profile media people or politicians. When the detail of the proposal comes out, it will be interesting to see whether they understand this. If they decide to go for the people piling in – the small accounts, the ‘anonymous’ accounts, the followers rather than the leaders – then not only will they be infringing freedom of speech, they won’t be doing anything about the problem at all. If they go for the leaders, it will be very interesting to see whether they actually enforce it. A few well known journalists and even a few MPs prosecuted would be quite something – but it’s hard to believe they’ll actually bite that bullet.
“That’s the bottom line here: the main impact of laws like this will be to restrict legitimate criticism of people in power” – Professor Paul Bernal
Is it possible to arbitrate something so subjective in nature?
Professor Paul Bernal: It would be possible to write a definition in law that would be possible to arbitrate, but it would be hard. It would have to include something like ‘knowingly or negligently’ instigating attacks on people on social media. It would be very difficult to get right, and the courts don’t have a good record of understanding the reality of social media activity. It would be highly likely to be enforced inconsistently, unfairly and arbitrarily. It would also be a tool easily abused. You could accuse your enemies of piling on, when they’re just legitimately criticising you. As with almost all ‘anti-troll’ tools and laws, it could become a tool for trolls to use on their victims.
Will this set a legal precedent for restrictions on holding power to account?
Professor Paul Bernal: I wouldn’t say this would exactly create a precedent in terms of restriction on free speech – but only because we already have laws that do this (S127 of the Communications Act, and the Malicious Communications Act amongst others) and the whole ‘Online Safety Bill’ approach, which has been central to the Government’s ideas for the last few year, is essentially about restricting free speech. The question is whether the restrictions on free speech can be deemed ‘necessary’ to keep people safe. I can’t see that they can be – particularly given that the laws are highly likely to be ineffective at keeping people safe, whilst actually restricting free speech considerably, as well as creating a chill by making people who don’t really understand the law feel too scared to actually say what they want to say. That’s the bottom line here: the main impact of laws like this will be to restrict legitimate criticism of people in power.