The FSU responds to the new version of the Online Safety Bill
The new version of the Online Safety Bill returns to the Commons today and the latest iteration of the legislation seems, on the face of it, to be an improvement on the previous version (thanks, in large part, to our lobbying). We’ll know more when we’ve read it – all we have to go on at the time of writing is a DCMS press release and some amendments moved by Michelle Donelan, the Digital Secretary and architect of the new Bill. The devil will be in the detail.
Something that hasn’t had that much press coverage, but is still important from a free speech perspective, is that plans to introduce a new harmful communications offence in England and Wales, making it a crime punishable by up to two years in jail to post a message online (or send one in the post) with the intention of causing “psychological harm amounting to at least serious distress”, have been scrapped.
That’s good news and something we’ve been campaigning for. It means the new version of the Online Safety Bill won’t criminalise saying something, whether online or offline, that causes “hurt feeling”. The bad news is, the new communications offence was intended to replace some of the more egregious offences in the Malicious Communications Act 1988 and the Communications Act 2003 (henceforth ‘MCA’ and ‘CA’). As things stand, the offences in the MCA will be repealed, but not s127 of the CA, which is the offence Count Dankula was prosecuted for.
The latter will remain on the statute books, and the FSU will continue to campaign for its removal. The restrictions imposed on what you can say, whether online or offline, by the CA are, we believe, out of date and may, in part, be incompatible with the European Convention on Human Rights — that’s a claim we’re hoping to test in Strasbourg as part of Joe Kelly’s forthcoming appeal against his conviction and sentencing for posting a tweet that contravened the CA, section 127(1)(b). (You can read about that case here, donate to Joe Kelly’s CrowdJustice fundraiser here, and read our latest briefing document on the CA here.)
Another positive in Culture Secretary Michelle Donelan’s revised version of the Bill is that clause 13, which would have forced the big social media companies to set out in their terms of service how they intended to ‘address’ content that’s legal but harmful to adults, has now been scrapped. Instead, they’ll have to set out what tools they’ll provide their users with so they can block that content if they don’t want to see it – what’s being referred to as the ‘user empowerment’ model. That’s an improvement, but we shouldn’t exaggerate how much of a win this is.
The Times, for instance, reported that “the Government has dropped plans to force social media and search sites to take down material that is considered harmful but not illegal,” but it never planned to force sites to do that.
The FSU’s objection to clause 13 was always more nuanced. It was that if the Government published a list of legal content it considered harmful to adults and created an obligation on providers to say how they intended to ‘address’ it, that would ‘nudge’ them to remove it. Even though the option to do nothing was available to providers in the previous version of the Bill, it would have been a brave social media company that chose this route, given that the Government had designated the content as harmful to adults.
That’s why back in July the FSU successfully lobbied for an amendment to the previous version of the Bill that would have made it clear that one of the ways providers could ‘address’ this content would have been to do nothing. (You can watch Adam Afriyie MP setting out that amendment in the House of Commons here.) Our main concern about the new ‘user empowerment’ model is that the default settings on Facebook, Instagram, Twitter, etc., will be the ultra-safe settings, which may mean that politically contentious content is blocked unless you ‘opt in’ to see it. That could amount to a form of censorship, particularly if it’s not easy to adjust the settings.
There’s another respect in which free speech will be better protected in the new version. The previous one said providers would have “a duty to have regard to the importance of protecting users’ right to freedom of expression within the law”. That was pretty toothless since ‘have regard’ is the least onerous of the legal duties. In the new version, we’re told, that has been beefed up to ‘have particular regard’, which is something the FSU has been lobbying for.
Taken as a whole, we think this is an improvement on the previous version. Michelle Donelan has had to steer a difficult path between those of us lobbying for more free speech protections and a vast array of groups petitioning her to make the Bill more restrictive, including factions within her own party.
Nevertheless, we still have concerns about the Bill and will be scrutinising it carefully today. If, as we suspect, the duties to protect content of democratic importance and journalistic content have lost some of their force – two vital free speech protections – we will work with parliamentarians in the Commons and the Lords to reinvigorate them – and, as usual, we’ll be asking for the help of our members and supporters to get their MPs on side.
You can read our more considered views on the new version of the Online Safety Bill on our home page.
FSU’s New Year Regional Speakeasies announced
The FSU will be kicking off 2023 with a new series of Regional Speakeasies. Each event will include an address from a senior member of FSU staff on the topic, ‘Why Free Speech is Worth Fighting For’ — I’ll be joining our Education and Events Director, Dr Jan Macvarish, at the Speakeasy in Brighton on Tuesday 7th February. The events are a great chance to find out why everyone at the FSU is so passionate about defending free speech and to hear about the many ways our work is having an impact across various fronts, from case work and campaigning to parliamentary lobbying and policy research. They also provide an important opportunity for us to thank members in person for their continued support. There will, of course, be plenty of time for socialising with fellow free speech supporters. All event details will be listed here later in the week. Doors open at 7pm, and we kick things off at 7.30pm.
Letter to the Education Secretary about the Higher Education (Freedom of Speech) Bill
In a letter coordinated by the FSU and sent to the Secretary of State for Education, Gillian Keegan, more than 50 academics urged the Government not to water down the Higher Education (Freedom of Speech) Bill in response to intense lobbying from the higher education sector (Telegraph).
We decided to pull this letter together in response to news that the government was considering making concessions to universities regarding powers contained in clause 4 of the legislation that would enable academics and students to sue institutions for breaching their free speech rights. There are several laws protecting academic free speech already on the statute books, but the problem is that they are usually ignored because there are now adequate enforcement mechanisms. Presently, for instance, academics can seek a judicial review if their rights are violated, but that typically costs hundreds of thousands of pounds, which clearly isn’t viable for most academic staff.
The Higher Education (Freedom of Speech) Bill is particularly promising in that regard because it contains plans to create a robust mechanism for enforcing those existing laws via the introduction of a statutory tort to allow civil claims to be brought in the County Court against Higher Education Providers and Student Unions if they breach their new free speech obligations. That’s a key enforcement mechanism if higher education providers are to take their new free speech duties, as set out in the Bill, seriously. As our Chief Legal Counsel Bryn Harris pointed out to the Times Higher, the functional significance of the tort is that rather than making disputes costlier and nastier, it would, simply by dint of existing, deter universities from riding roughshod over free speech.
As an organisation we feel strongly about this. The FSU gets about 50 cries for help a week, many of them from students and academics who got into trouble simply for exercising their lawful right to free speech on campus. If the Bill is passed as it stands — i.e., with the statutory tort remedy in place — then the vast majority of students and academics who find themselves in a similar situation in the future will undoubtedly be in a stronger position.
Signatories of the FSU coordinated letter include Prof Kathleen Stock, the philosophy professor who was hounded out of Sussex University due to her gender critical beliefs (Unherd), and Prof John Finnis, an Oxford law professor who faced calls to be removed from his post because of his views on homosexuality (Oxford Mail). They also include Dr Heather Brunskell-Evans, who was no-platformed by university students at King’s College London after she discussed transgender issues on a radio show (Times).
In the letter, the academics say that critics of the Bill “underestimate the scale of the free speech crisis in our universities” because “for the most part” they are “ideologically aligned with the enforcers of intellectual orthodoxy and therefore have not had to self-censor or contend with prolonged investigations merely for expressing their opinions, let alone the bullying and intimidation faced by academics who challenge the prevailing wisdom on campus about trans rights”.
Stirring stuff, of course, and we think it dissuaded the Government from scrapping the tort altogether, which the higher education sector has been furiously lobbying for. Instead, the Government tabled an amendment to the Bill in the Lords seeking to strike a compromise with its critics (the amendment can be found here, close to the top of page 3). The amendment won’t ditch the statutory tort entirely, but will instead reduce it to a weapon of last resort, whereby students and academics can only sue universities if they’ve exhausted all the complaints procedures. That is worrying since it gives universities the whip hand. As Professor Jo Phoenix, who was defended by the FSU after she was no-platformed by Essex University, pointed out to the Telegraph, that would be “an excellent way that university managers can kick the problem in our universities into the long grass”.
One of the other things the Bill will do is create a Director for Freedom of Speech and Academic Freedom role in the Office for Students. This new office holder will have the power to investigate complaints, which is obviously welcome. But the government amendment, by making it harder to sue universities, makes the enforcement of the new free speech duties in the Bill contingent on whoever is appointed to that new role. We have no guarantee it will be someone who cares about free speech, which of course brings us back to Professor Phoenix’s point — if the culture at the top of the proposed new regulatory system is one in which safetyism is favoured above academic freedom, then it’s likely to make it easier for university managers to, as Jo puts it, kick the problem “into the long grass”.
The FSU’s position is clear — the only way to make sure universities uphold the new free speech duties in the Higher Education (Freedom of Speech) Bill is to give aggrieved parties the option of suing them in the county court. Without that, the Bill is unlikely to make much more difference than the Education (No. 2) Act 1986, which imposed a legal duty on universities to uphold free speech, but was never taken seriously by the sector. Why? Because there was no accompanying enforcement mechanism.
The FSU ranks payment processors and crowdfunding platforms
When payment processing company PayPal orchestrated a wave of partisan cancellations in September 2022, withdrawing services from numerous organisations including the FSU, thousands of our supporters cancelled their PayPal accounts in an incredible show of solidarity and support for freedom of expression. In the face of mass account closures, PayPal was forced to do a U-turn.
In light of what happened, we thought we’d publish an analysis of the terms and conditions of the major payment processors and crowdfunding platforms, giving each company a score out of 10 according to how friendly they are towards free speech it was. That briefing came out last month.
The link to the briefing is here. Unfortunately, the overall picture is fairly bleak. Six of the nine platforms we investigated get a score of 4/10 or below. The only crowdfunding platform we recommend for users concerned about protecting their free speech is Donorbox (8/10), although it’s not perfect. When it comes to payment processors, the only companies we’d recommend are Worldpay (8/10) and Stripe (7/10).
The difficulty we’ve identified is that the majority of payment processors and crowdfunding platforms rely on subjective language that can easily be interpreted to withdraw service from users for purely political reasons.
And this is in fact what’s happening, with numerous providers de-platforming users because they disapprove of their perfectly lawful political beliefs. Some of these companies even grant themselves the right to withdraw their services – even helping themselves to your funds – based on speech that’s completely unconnected to the platform, e.g., things you’ve said on social media.
If you add in choice of law issues, which frequently define users’ rights according to legal systems on the other side of the world, and a hierarchy of increasingly opaque business-to-business user agreements, it is virtually impossible for customers to foresee precisely what they are and aren’t allowed to say. In other words, the hammer could come down with no warning and no real explanation, as it did for the FSU – which is why we’re lobbying the Government to amend the Financial Services and Markets Bill to make it illegal for financial companies to withhold or withdraw service from customers for purely political reasons.
You can take a look at the briefing here.
Policing Minister orders Chief Constables to stop recording non-crime hate incidents (NCHIs)
During an appearance at the Oxford University Conservative Association this month, Policing Minister Chris Philp was asked whether he’d give a personal commitment to enforce Miller v College of Policing (2021), the landmark legal case that ruled that the then current College of Policing (CoP) guidelines on the recording of NCHIs were unlawful and should be replaced. The minister duly obliged, explaining that he’d recently met with the CEO of the CoP, Chief Constable Andy Marsh, and was in the process of arranging to meet all Chief Constables to tell them to stop recording NCHIs. If they didn’t listen, he added, then he would be prepared to use next year’s Police Reform Bill to force them to do so.
That’s encouraging news. NCHIs are/were a threat to free speech in this country. The FSU knows that better than most — over the last two-and-a-half years we’ve supported plenty of people who’ve fallen foul of this sinister form of thought policing. Take FSU member Kevin Mills, for instance. Two years ago, Kevin was handed a NCHI by the police after refusing to work with a customer who he feared wouldn’t pay the bill. The FSU intervened and Kent Police deleted his record earlier this year.
So how did we get here? Back in 2014, the CoP’s original guidelines defined NCHIs as incidents perceived by the victim or any bystanders to be motivated by hostility or prejudice to the victim based on a ‘protected’ characteristic (e.g., the colour of their skin). According to the guidance, NCHIs could be reported by the victim or by any other person who witnessed the incident and the police would then have to investigate them, irrespective of whether there was any objective evidence to identify the hate element. If the police concluded no crime had been committed, the NCHI would then be recorded against the accused’s name and could show up if a prospective employer carried out an enhanced criminal records check. Astonishingly, an average of 30,000 NCHIs have been recorded every year since then.
The FSU worked with Lord Moylan and other peers earlier this year to secure an amendment to the Police, Crime, Sentencing and Court Act 2022 that gave the Home Secretary the option of placing the recording of NCHIs and the retention of the data on a statutory footing, governed by a Code of Practice approved by Parliament instead of the say-so of an unelected quango. The Home Secretary has yet to avail herself of this option, but the fact she has it in her back pocket undoubtedly helped give the Policing Minister the confidence to tell chief constables to stop recording NCHIs.
The next step, after we’ve reined in this practice, is to start getting the NCHIs already recorded against people’s names removed. If you want to know how to find out if you have one against your record, or how you might go about getting one deleted, the FSU has produced a short FAQ on NCHIs which you can access here.
FSU Members Survey – the results are in!
We promised that we would get back to our members and supporters with the headline messages from our membership survey at the end of October/early November.
We had a great response, with around a third of FSU members completing the survey, enough for us to draw some credible inferences. We were happy to read so many positive comments from members highlighting what the FSU has achieved since its creation. The overall satisfaction score with the FSU was 89%!
The top priority for members is for the FSU to keep lobbying the Government to better protect free speech – and we are seen as a unique vehicle to achieve that. We agree and will not be taking any pressure off our lawmakers when it comes to issues such as the Online Safety Bill, the Higher Education (Freedom of Speech) Bill, the Financial Services and Markets Bill, or any future bill that has an impact on free speech.
We asked members why they joined the FSU and those in employment are particularly concerned about the ever-growing threat of being cancelled. This continues to be a top priority and we now have four people working in our case team. At any one time, we can have up to 75 open cases on our system.
There is a wide range of professions represented across our membership. The chart below highlights some of the sectors that we see repeatedly in our case work (education, for example, in green).
We’ve taken on board the message that more regional events would be appreciated, and we will continue to try to get the balance right between in-person and online events. Those working in particular professions – education, the arts – said they’d like us to organise more sector-specific events and we will aim to organise some next year.
The open-ended final question (general suggestions for how the FSU could be even better) yielded over 1,125 comments! Here is just a flavour of what you said to us.
All in all, it feels like we’re on the right track, but our members would like us to do more. The UK’s free speech crisis shows little sign of letting up and we will take the best ideas forward. Resources are tight, but the mission is far too important for us not to continue listening to our members and harnessing their expertise. The executive summary in our internal report on the survey was structured around two words: retention and growth. Both are essential if we are to win the free speech war!
The FSU Christmas Special – a festive comedy extravaganza!
The FSU’s live Christmas Comedy Special takes place on Monday 12th December, and looks like being a sell-out event. So if you’d like to attend, please do round up your friends and family today – you can book tickets here. The event takes place at the Backyard Comedy Club in Bethnal Green from 7pm onwards. Comedy legend Bobby Davro will be the Master of Ceremonies, and he’ll be joined on stage by stand-up comedian and GB News presenter Leo Kearse, Comedy Unleashed favourite Mary Bourke, and comedian and Radio 4 ‘personality’ Simon Evans.
Join us for the FSU Christmas Review!
If you can’t make it to London for the Comedy Special, not to worry – you can join us online on Tuesday 13th December for our annual Christmas Review. The Review is a great opportunity for FSU staff and members to vote for 2022’s free speech heroes and villains and to discuss the year’s free speech ‘highs’, as well as ‘lows’. Please note that this event starts slightly earlier than usual, at 6pm, so as not to clash with the World Cup semi-final at 7pm which – based on last night’s easy victory over Senegal – England might be in. You can register for the event by clicking here.
Sharing the newsletter
As with all our work, this newsletter depends on the support of our members and donors, so if you’re not already a paying member please sign up today or encourage a friend to join, and help us turn the tide against cancel culture. You can share our newsletters on social media with the buttons below and help us spread the word. If someone has shared this newsletter with you and you’d like to join the FSU, you can find our website here.
Kind regards,
Toby Young