The Online Safety Bill is the latest in a series of very concerning Bills proposed by the UK Government that threaten freedom of expression, such as the new Policing Act and the Public Order Bill.
The current government claims that the Online Safety Bill will ‘make the UK the safest place in the world to be online while defending free expression’. The Bill aims to:
- increase user safety online
- preserve and enhance freedom of speech online
- improve law enforcement’s ability to tackle illegal content online
- improve users’ ability to keep themselves safe online
- improve society’s understanding of the harm landscape.
The Bill makes ‘regulated services’ (such as social media and search engines) responsible for removing:
- illegal content,
- content that is harmful to children and
- content that is legal but harmful to adults.
Unfortunately, this Bill could have devastating consequences for free speech online.
Currently, the Bill is going through the House of Lords and will soon enter the final stages.
The most complete opinion on the Bill has been commissioned by Index on Censorship (who also have a list of proposed amendments to the Bill). Index on Censorship said that the Online Safety Bill ‘will be catastrophic for freedom of speech’.
But why should you, an artist, care about all this? After all, you may not even have a huge social media presence or make work you consider to be threatened by online censorship. There are two main reasons why: it may affect your ability to make a living, and it may land you in jail… or even get you deported.
FOSTA/SESTA: Why your art keeps getting removed from Instagram
Ever wondered why artworks that contain nudity keep getting removed from Instagram? In 2018, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) got passed in the United States of America. Like the proposed Online Safety BIll, these anti-trafficking laws aimed to make the internet a safer place for everyone. Initially, they faced backlash from the tech industry as they meant that the tech companies could be held responsible for what their users posted, but this soon went away. They have become a point of no return for censorship on the internet. As a result of the passing of these laws, the following things happened:
- Tumblr banned pornography from their platform. This caused LGTBQ+ artistic communities to lose their ability to make a living, and also lose their networks.
- Mastercard and Visa tightened their rules around newly designated pornographic content. When payment processors tighten their rules, that means that the content hosts (hosting companies, social media, etc.) will have to tighten them too. If not, they could risk being able to process any payments (make money off their users)
- Both Apple’s App Store and Google’s Play Store tightened their rules on newly designated pornographic content.
- Backpage got taken down, and many sex workers lost their ability to make a living. This is relevant because anti sex-work legislation and anti-porn legislation are often used as tools of censorship and directly impact the kinds of work that artists can make a living from.
If you don’t make any kind of pornographic content, you may think that this doesn’t affect you. Most of these platforms use algorithmic moderation to remove content and ban accounts. And studies have shown that algorithms tend to conflate racial, fat and LGTBQ+ content with pornography. This means that if you are a fat femme, you are more likely to get banned on social media for doing the exact same things that a thin white femme does, for example. It also means that if your work contains any of those themes, you are more likely to face a temporary or a permanent ban. When pornography is banned, and this ban is enforced by algorithms, art faces censorship too.
This is the current state of play. Online platforms that are not based in the US have been acting according to FOSTA/SESTA and often, being overzealous with their actions since 2018. This may seem odd, but most tech companies, even when they’re not based in the US, tend to follow US legislation – either in an attempt to avoid having their US userbase banned from using their services or for some other reason. But the Online Safety Bill will be even more dangerous to artists worldwide, but particularly in the UK: let’s look at the ‘legal but harmful’ clause.
The Online Safety Bill: What’s the problem?
Index on Censorship’s report on the Bill concludes that it will ‘lead to the restriction of speech considered ‘legal but harmful’’. But what exactly is ‘legal but harmful speech’? Sadly, the bill fails to define this, leaving it open to wide interpretation by both courts and online platforms, who have to enforce this law. In practice, ‘legal but harmful speech’ could mean anything from producing artworks that depict rape, suicide, racism, even if the artwork is denouncing these things. And it’s up to the online platforms to decide what ‘legal but harmful speech’ is. This undermines the rule of law, according to Matthew Ryder KC. He determines that ‘online platforms will inevitably turn to machines, not trained people, which are unable to make such nuanced and difficult legal assessments’. I will go one step further: given what we know about content moderation, the algorithms used to flag these kinds of content will have racist, sexist, fatphobic and xenophobic biases.
But the Bill doesn’t stop there. It asks the platforms not only to remove or limit the visibility of this content but to ‘prevent’ users from posting it. Ryder is concerned that this may lead to the implementation of upload filters. This would prevent all of the content mentioned above from being uploaded in the first place. This may mean anything from being unable to make WhatsApp videocalls, uploading content to social media, or uploading content to your own website. FOSTA and SESTA showed us how quickly payment processing platforms were to ditch users that presented ‘a legal risk’: what would you do if the kind of art that you make prevented you from using PayPal, CashApp, Venmo, TransferWise, Square, Revolut or Monzo? How would you process payments from international customers if you sell to them?
The consequences of the Online Safety Bill would not end there. According to Index on Censorship, passing it means that ‘‘the UK government will be able to directly silence user speech, and even imprison those who publish messages that it doesn’t like’. The Bill also undermines global encryption standards. This means that your private messages would not be private anymore. Platforms would be forced to track them for the UK’s Office of Communications (OFCOM).
This is extremely dangerous for LGBTQ+ individuals as well as any other minorities. If you are currently producing politically involved art, particularly art that is critical of the government, would you upload to the internet if you knew that it could land you in a court of law? Would you produce it at all if you had no way of sharing it? The passing of this law will mean that artistic speech is under an assault we have not seen the likes of before.
Sexual freedom laws and censorship in the UK: Romans in Britain, Section 28, and censorship
It would be amiss if I didn’t mention a couple of situations that should showcase how the right to sexual freedom and the right to free speech and artistic expression are related. First, let’s look at ‘The Romans in Britain’, a 1980 stage play by Howard Brenton. It chronicles the imperialism and abuse of power in Britain from the Roman invasion. It was also the subject of a private prosecution and smear campaign brought forward by Mary Whitehouse. She was a conservative moral campaigner. She didn’t even watch the actual play, afraid that watching it could compromise the integrity of her soul.
Whitehouse ultimately lost her case against the director of the play (Michael Bogdanov). Yet, she did make his life incredibly difficult for over a year. She spearheaded a smear campaign in the press that brought all kinds of negative attention to the director, the performers and the rest of the crew. Whitehouse started a private prosecution against the director. She did this on grounds that he had ‘procured an act of Gross Indecency by Peter Sproule with Greg Hicks on the stage of the Olivier Theater’. She used a law intended to stop men from having sexual intercourse in lavatories.
The strategy of conflating the existence of LGBTQ+ and ‘deviant’ people with an attack on public morality is still used today. The last shooting in a LGBTQ+ club in Colorado occurred amidst claims in the press and on social media that drag queens and trans women are grooming children.
Finally, I would be amiss not to mention Section 28, the infamous Thatcherite attack on sexual freedom and freedom of speech. It was created as a response to a children’s book that featured a homosexual family. The law was as vaguely worded as the Online Safety Bill is (which allowed for ‘ample interpretation’ by local authorities). It prohibited local authorities and schools from ‘promoting’ homosexuality, as well as preventing councils from funding LGBTQ+ initiatives at the peak of the AIDS epidemic. In practical terms, this meant that any books that referenced LGTBQ+ lives or practices were banned from libraries. It also meant that LGTBQ+ aspects of history were not taught in school, pupils could not produce artwork that featured LGTBQ+ themes… I don’t think I have to spell out the immense harm this policy did to generations of LGBTQ+ people in the UK.
What to do now the Online Safety Bill is at the Lords?
First and foremost, I hope that this short article has served to educate you on the issues of the law a bit further. I would encourage you to visit the links featured here to continue educating yourself on the matter. You can, of course, reach out to one of the Lords and let them know about your concerns and how this law could impact you.
I would however like to end this article on a creative, perhaps hopeful note: AARGH! That’s not a shout of frustration (although it could be), but ‘Artists Against Rampant Government Homophobia’. Published in 1988 in the magazine Mad Love as a response to Section 28, this fanzine featured comics and artwork from Bryan Talbot, Alan Moore, Roger Crumb, Steve Bissette, and many others. Perhaps it is time for another.
This work by Alba Jato and first published on Artquest is licensed under a Creative Commons Attribution-Non Commercial-Share Alike 3.0 Unported License.
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