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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Scottish Independence: the Timetable

Now that the Scottish government has published its independence White Paper, Scotland’s Future, people are beginning to focus not just on the wide range of issues that need to be negotiated, but the relatively short timescale in which to do so.  The timetable set out by the Scottish government is as follows:

September 2014: Referendum

May 2015: UK General Election

March 2016: Independence for Scotland

May 2016: Elections to Scottish Parliament.

When asked by the media to comment, I said last year that the timetable was tight but realistic.  Not everything would be settled in 18 months, but the big issues could be, and a lot of the lesser matters left to be sorted out later.  The Czech-Slovak divorce took just six months after the decision to separate, and was given effect through 31 Treaties and some 12,000 legal agreements, many negotiated subsequently (see chapter 4 of our book Scottish Independence: A Practical Guide, by Jo Murkens, Peter Jones and Michael Keating).  So 18 months seemed not unreasonable, if both parties negotiated in good faith and with a sense of urgency.  To allow the negotiations to drag on for years would be debilitating for both countries, creating uncertainty for business, the markets and the economy, as well as for citizens and for our international partners.

Alex Salmond mentioned my support for the Scottish government’s timetable at the launch of their White Paper.  But I have since had to cause to recant.  What I had overlooked was the time required for legislation at Westminster and the Scottish Parliament to give effect to independence.  The negotiations on all major matters will need to be concluded before the legislation can be introduced.  Westminster will not tolerate a framework bill allowing the two governments to fill in the details.  Nor will Westminster tolerate an urgent bill being rushed through under a guillotine.  As a first class constitutional measure, it would have to take its committee stage on the floor of the House.  Even if the government did manage to impose a guillotine in the Commons, it has no control over the timetable in the Lords, who will want to allow plenty of time for a bill of such importance.

How long might the legislation take?  The closest analogy is perhaps the Scotland Act 1998, whose passage took 11 months.  It did so under favourable circumstances, in the first session of a new government elected with a landslide majority of 179.  The difficulty for the independence negotiations, as Nick Barber has pointed out [], is that there may be a change of government in the UK at the half way mark, in May 2015.  A new government may not feel ready to introduce legislation immediately to give effect to negotiations conducted by its predecessor.  It may want to re-negotiate certain aspects.  The earliest possible date for introducing a Scotland Independence Bill is likely to be autumn 2015.  Given the opposition there is likely to be in both Houses at Westminster to Scottish independence, which will be expressed as hostility to the terms of independence, it will not have an easy passage.  It would be a miracle if the bill was passed in six months, in time for Salmond’s target date of March 2016.