The Government originally set out its intention to appoint Ofcom as the social media regulator in the Online Harms White Paper (April 2019), before the full response to the White Paper consultation (December 2020) confirmed that this would indeed be the case. It’s therefore critical for anyone with an interest in defending free speech to understand the scale and scope of Ofcom’s new role.  

In the legal ecosystem proposed by the Bill, Ofcom will be attempting to do for online platforms what it has been doing for some time now in the case of broadcasters, namely, tackling harmful content and protecting freedom of speech. 

But will Ofcom possess the necessary regulatory powers to pursue these apparently incompatible aims side by side, championing them both? 

There are good reasons to be concerned.

There is, after all, a strong bias towards the removal of questionable-yet-perfectly-permissible-material built into the architecture of the proposed regulatory system. As things stand, for instance, online providers will risk fines and other sanctions from Ofcom if they don’t remove material but will easily be able to avoid punishment for acting precipitously by demonstrating compliance with an extremely weak duty to “have regard” for free speech.  

In this personal essay, Dr Frederick Attenborough argues for a series of focused and limited amendments to the Bill that would effectively require both Ofcom, and the online service providers it will soon be regulating, to more robustly protect and preserve online freedom of speech and expression.