Online harms to democracy: the government’s change of approach

Two years after the publication of the government’s Online Harms white paper, the government has published its final consultation response. Its commitment in the white paper to legislate to prevent online harms to democracy has disappeared, to the frustration of many inside and outside parliament. Alex Walker reflects on the government’s decision to ‘abandon the field’ and argues that a laissez-faire approach could lead to negative consequences.

It is expected that the Queen’s Speech on 11 May will include the government’s long-awaited Online Safety Bill. This will be a major piece of legislation with significant implications for the regulation of digital technology companies in the UK. However, when it is introduced it now seems highly unlikely that it will encompass measures to prevent harms to democracy, as was initially indicated.

The Online Harms white paper published in April 2019 set out a position that recognised the dangers that digital technology could pose to democracy and proposed measures to tackle them. This was followed by an initial consultation response in February 2020 and a full response in December. In the course of the policy’s development, the democracy aspect of the proposals has disappeared. The government now points instead to other areas of activity. This represents a shift away from the ambition of the white paper, which promised to address online harms ‘in a single and coherent way.’

Online Harms white paper: April 2019

The white paper first put forward the government’s intention for a statutory duty of care that would make companies responsible for harms caused on their platforms. This would include illegal harmful content, such as child abuse and terrorist material, but also some forms of harmful but legal content, including disinformation and misinformation. The white paper explicitly framed some of its proposals for tackling online harms in relation to the consequences for democracy. It detailed some of the harms that can be caused, including the manipulation of individual voters through micro-targeting, deepfakes, and concerted disinformation campaigns. It concluded that online platforms are ‘inherently vulnerable to the efforts of a few to manipulate and confuse the information environment for nefarious purposes, including undermining trust’. It recognised that there is a distinction to be drawn between legitimate influence and illegitimate manipulation.

The white paper also set out what the government expected to be in the regulators’ Code of Practice, and what would be required to fulfil the duty of care. This included: using fact-checking services, particularly during election periods; limiting the visibility of disputed content; promoting authoritative news sources and diverse news content; and processes to tackle those who misrepresent their identity to spread disinformation. It stated that action is needed to combat the spread of false and misleading information in part because it can ‘damage our trust in our democratic institutions, including Parliament.’

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Why democrats should welcome a hung parliament

Much commentary has presented the hung parliament that resulted from last week’s general election as a source of damaging instability. In this post Albert Weale argues that democrats should in fact welcome a hung parliament, where a parliamentary majority approves measures on the basis of the merits of the arguments rather than on the basis that they were included in the majority party’s manifesto.

The UK now has a hung parliament. Does that mean that British government is no longer strong and stable but weak and wobbly? To listen to much commentary, you would think so. But for democrats there are good reasons for welcoming a hung parliament.

The prevalent view of parliamentary democracy in Britain runs something like this. General elections are occasions of accountability of governments to the people. Parties stand on their manifestos, and if they secure a majority of seats, their democratic responsibility is to implement what they have promised. Through the Salisbury convention, the House of Lords will not frustrate measures promised in the manifesto. If the people do not like what the governing party has done, they have the opportunity to get rid of that party at the next election.

In this way of thinking, the first-past-the-post electoral system occupies a crucial role. It may not deliver a fair representation of political opinion, at least as judged by the test of proportionality, but it does secure stable government. It magnifies a simple plurality of the popular vote into a majority, often a large majority, of seats in the Commons. With such a majority, a government has no excuse for not implementing the programme for which it has received a mandate. That is simply democracy.

If politics were simply a matter of a contest between left and right, with the two major parties drawn towards the centre ground, this view of democracy might have something to be said for it. In the real world it has nothing to be said for it.

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The constitution of democracy and the pretensions of the plebiscite

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Albert Weale writes that the Article 50 case raised questions about which form of democracy can claim legitimacy –  the constitutional democracy established in the UK or the plebiscitary democracy now favoured by many Brexiteers. He discusses these two models and concludes that the only meaningful interpretation of democracy is the constitutional one. In this context the outcome did not represent the judges against the people, as some newspaper headlines suggested, but the judges for the people.

When the UK’s High Court rendered its decision on whether the government could trigger Article 50 of the Lisbon Treaty under the royal prerogative to initiate the UK leaving the European Union, it released a storm of abuse against the judiciary in the press and among cabinet ministers. ‘Enemies of the people’ snorted the Daily Mail; ‘The judges versus the people’ growled the Daily Telegraph. These were the crudest examples. Yet, for all that, they are representative of the Brexiteers’ critique. Had not the people spoken on 23 June and decided the issue by a majority in a referendum? How then, it was urged, could a group of unelected judges interpose themselves between the will of the people and the realisation of that will in policy?

For anyone who bothered to follow the issues in detail and read the judgement, the reality was, of course, quite otherwise. That the claim of the plaintiffs could properly go before the courts was agreed as much on the government side as on the plaintiffs’ side. Indeed, it is easy to see the government welcoming the challenge in order to secure legitimation for its pretension to executive authority by a court judgement in its favour. The case was not about whether Brexit should happen but how it should happen.

There are legal arguments claiming that the High Court was wrong to suppose that triggering Article 50 will alter the rights that citizens enjoy under the law of the land. Those arguments make much of the distinction between the European Communities Act as a conduit or vehicle of rights as distinct from being a source of rights. Those arguments will be for the Supreme Court to decide. But what is certainly prompted by the reactions to the judgement is a broader question of constitutional politics. As well as questions of constitutional law, there are important questions of constitutional and democratic theory. For what is at issue in the controversy was which form of democracy could claim legitimacy – the constitutional democracy established in the UK or the plebiscitary democracy that Brexiteers now favour.

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We need to talk about our democracy

me 2015 (large)Meg-RussellRecent days have seen ferocious attacks against the roles of both judges and parliamentarians in our democratic system. Alan Renwick and Meg Russell write that this assault is just the latest in a series of signs that the quality of our democracy is under threat. In light of this they argue for concerted efforts to defend that democracy: by pushing back hard against immediate challenges to the rule of law, resisting the lures of populism, and listening to those tempted by populist and anti-political rhetoric.

Thursday’s High Court ruling on Article 50 (assuming it is confirmed by the Supreme Court), means no more than that the government cannot legally begin formal Brexit negotiations without parliament’s consent. The judges did not question the validity of the referendum result or try to block the UK’s withdrawal from the EU – they just clarified the law. Parliament – as demonstrated by many MPs’ reactions – will almost certainly feel politically bound to respect the referendum outcome and authorise the Article 50 trigger.

Yet, as is now well known, the judgement has unleashed a wave of vitriol from parts of the press, from some politicians, and even from certain government ministers. The Daily Mail labelled the judges who delivered the ruling as ‘enemies of the people’. The Telegraph presented the issue as one of ‘judges vs the people’. Nigel Farage talks of a ‘great Brexit betrayal’. The Communities Secretary, Sajid Javid, referred to the case as ‘a clear attempt to frustrate the will of the British people’. Hearing such reactions, many ordinary citizens are understandably outraged by what they perceive as the scheming duplicity of an arrogant governing elite.

This gross overreaction is deeply worrying and potentially dangerous. We tend to presume that the democratic system in the UK is rock solid. Yet the democracy indices produced by the Economist Intelligence Unit and Freedom House have charted declining democratic quality in recent years in many long-standing democratic countries, including Austria, Belgium, and the Netherlands. In the United States, commentators and senior political scientists are greatly troubled by how Donald Trump’s behaviour and rhetoric of rigged elections could weaken the foundations of the democratic system. Democracy faces similar challenges here in the UK too. In light of this, we need to cool the passions and encourage a national conversation about what democracy is and what sustains it.

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