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LONDON – The UK’s proposed new Internet law is causing a government takeover with worrying implications for freedom of expression, according to civil rights groups, academics and the tech industry.
Groups are concerned that the proposed Online Safety Act would give Secretary of Culture Oliver Dowden disproportionate powers in the name of protecting users from “harmful” content.
The bill allows him to “modify” a code of conduct – the draft of the regulator Ofcom’s draft for the protection of users by technology companies – to ensure that it “reflects” government policy.
Critics say such powers, set out in a draft bill released in May and requiring immediate scrutiny by MPs and colleagues, could undermine the independence of the regulator and potentially politicize regulation of the internet.
“The notion that a political officer will have the unilateral power to change the legal boundaries of freedom of expression based on the political whims of the moment makes the blood run cold,” said Heather Burns, policy manager at the Open Rights Group.
The bill, which has not yet been officially passed by parliament, is due to be scrutinized line by line by lawmakers before being presented to parliament later this year, where it then goes through the stages it needs to complete in the law books. The UK government and opposition parties are currently deciding which lawmakers will sit on the pre-legislative committee.
Even the Carnegie Trust – a public policy think tank whose research into a “due diligence” model for regulating the Internet influenced early iterations of the government’s bill – has raised concerns.
“In order to meet the UK’s international obligations to freedom of expression,” it said in a response to the bill, “there should be a separation of powers between the executive and a communications regulator.”
The power to amend a code of conduct to “reflect government policy” could undermine OFCOM’s independence, it added. “The repeal of this provision is desirable from our point of view and would reaffirm the regulatory independence.”
Lorna Woods, University of Essex professor of internet law who is involved in Carnegie Trust research and response, said, “The Secretary of State’s ability to direct Ofcom to align Ofcom with government policy makes me excited unsettled under what circumstances the foreign minister can do this and what degree of specificity is envisaged. That is a little worrying. ”
“How that works is potentially worrying as you may see a government directing Ofcom to highlight certain things that may not be politically neutral,” she added.
Antony Walker, associate director of Tech UK, a trade organization with approximately 800 members in the tech industry, agreed that some of the powers in the bill go beyond what is “normal”.
“In a well-regulated sector in a democratic society, an independent regulator is seen as a really good thing,” he said.
Commercial companies want to know what is required to be compliant, he added. “If you keep looking over their shoulders, I think it will have a significant commercial impact and also undermine confidence in the legislation.”
Ben Greenstone, a former chief advisor to the minister responsible for online damage – now chief executive of Taso Advisory, a technology lobbying firm – said, “The draft online security bill gives the digital secretary of state a remarkable, and in my opinion unprecedented, Power to run an independent regulator. That leaves serious uncertainty in the economy: The rules can change depending on a politician’s mood. “
Opponents of the clause also express concerns that the regulator is already being politicized.
“It is clear that Ofcom, whose leadership will also be a political appointment, will be an independent regulator in name only. Your role will be to conduct the Foreign Minister’s political applications for DCMS [the Department for Culture Media and Sport], as well as the Home Secretary, and they will do as they are told. These steps are, of course, presented as being in the national interest or as a national security issue, “added Burns of the Open Rights Group.
Mark Johnson, a legal and policy officer at Big Brother Watch, argued that any restrictions on our right to freedom of expression must be in accordance with British law – decided by a full legislative process, “not by ministerial will”.
“If the government ministers are given such discretion, this law will transfer enormous power to the state,” he added, “and open this flawed regulatory system to politicization.”
In response to a request for comment from POLITICO, a DCMS spokesperson replied: “Our world-leading laws will impose clear and robust obligations on companies and Ofcom concerned to uphold and protect freedom of expression while ensuring that content is not excessive remove .
“The draft law was drafted with appropriate and transparent controls and considerations so that Ofcom’s implementation of the laws meets the political objectives decided and examined by a democratically elected parliament.”
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