'Even committed “conspiracy theorists”, such as myself, are amazed at
the audacity of this one. Even we who believe that the mainstream media
is nothing more than the propaganda arm of the Establishment did not
expect to see it confirmed so unambiguously in primary legislation. But
here it is, plain to see. I refer to sections 179, 180 and 182 of the
Act. ...The truth is powerless to make any impact. And so the authoritarian net closes around us.'
I have ceased to be so naïve as to believe that the law is defined by primary legislation. This is still the widespread belief, but it falls short of the full truth for three reasons, discussed below. Of course, primary legislation sets the broad outline of the law. But there is invariably considerable latitude in its interpretation.
The first feature which impacts on the interpretation of the law relates to Statutory Guidance. Many Acts are subject to more detailed interpretation of key terms and this is published later in the form of Statutory Guidance. Such Guidance is typically within the gift of the relevant Government Ministry – and hence, in effect, within the personal gift of the prevailing Minister. Moreover, in reality, this might mean more within the gift of the permanent under-secretary. By this means, crucial interpretation can escape scrutiny by Parliament – or even by the wider Government. It might even mean that the law becomes defined by an unelected civil servant, though this will never be visible to the public. The interpretation must, of course, be consistent with the published Act. But that often leaves considerable margin for tweaking according to personal ideological slant.
This aspect is relevant to the Online Safety Act in respect of the crucial meaning, within the terms of the Act, of the word “harm”, of which more below.
The second factor relates to judges and case law. It is inevitable that real cases involve issues that were not explicitly addressed, or not clearly enough resolved, in the Act or the Statutory Guidance. Individual judges set precedents when hearing cases and thus create case law which is then followed in subsequent rulings. Whilst inevitable, this process can involve systematic bias. Judges are members of society too, and so are just as subject to the prevailing prejudices as the rest of us. It would be unrealistic to expect their rulings to be entirely uncontaminated by these “approved prejudices”. And so cultural biases become baked into case law.
The third factor is the least appreciated of all, and involves the least legally qualified actors. It relates to the crucial role of the police. The matter is as simple as it is stark. If the police do not arrest you, then the law is irrelevant. Even if they arrest you, if they do not subsequently charge you, the law is again irrelevant. This is another place where cultural prejudices enter the picture. Heaven forbid that I should suggest that the police might be prejudiced in some way. But also important here is how cultural pressure moulds police behaviour – often through the policies of their superior officers (and note that, via the PCCs, this may have a political origin). This has become notorious recently as people have been interviewed by the police under “hate crime”, the police declaring that they need “to check your thinking”.
So, to the Online Safety Act 2023. I look at just three aspects of that Act: (i) the new offence of “false communication”, (ii) the obligation on internet platforms to monitor (break privacy), and, (iii) the suppression of “legal but harmful” content.
False Communication
Even committed “conspiracy theorists”, such as myself, are amazed at the audacity of this one. Even we who believe that the mainstream media is nothing more than the propaganda arm of the Establishment did not expect to see it confirmed so unambiguously in primary legislation. But here it is, plain to see. I refer to sections 179, 180 and 182 of the Act.
I reproduce the key parts of those sections below (in italics) so you can check them. Section 179 says that anyone who “sends a message” which they know to be false and which they intended to “cause non-trivial psychological or physical harm” to its recipient(s) commits an offence liable to up to 51 weeks in prison.
You may think that isn’t so objectionable, but the kicker is section 180. This makes the mainstream media immune – they cannot commit an offence under section 179.
So, the rest of us are to be held to rigorous account – but not a “recognised news publisher” and not a body licenced under the Broadcasting Act. And who acts as the Government’s agent in issuing such licences? Ofcom, i.e., Government itself. The BBC, specifically their subfunction “TV Licencing”, is also involved.
You might think that it is more important, rather than less, to enforce rigorous standards on licenced or recognised news sources than upon some blogger with relatively little reach. In other walks of life, being “licenced” suggests a higher standard, not a lower one. I invite you to consider why the mainstream media has – implicitly – been allowed to promulgate “false and psychologically harmful communications”. You may be tempted to use the phrase “project fear” in your answer. I couldn’t possibly comment. But the Act says what it says.
In terms of the prohibition on the rest of us plebs, section 182 makes clear that “sending a message” can mean anything. It can mean a private letter to one other individual. It can mean just a conversation, with no written form. It also includes forwarding, in good faith, an article, blog or tweet from another person which is false and which someone, somewhere deems to be harmful, even if you genuinely thought it was correct. The same applies to any hyperlink: you are culpable for what it contains. You may think that this is intended to discourage us plebs from ever writing or saying a word out of fear of the consequences. I couldn’t possibly comment.
Finally, if you think that section 179 might have been OK without section 180, that rather depends upon who is deciding on the matter of “harm”. Read on.
And even more so, it depends on who is deciding upon true versus false? The thinking behind this provision could not be clearer. The targets are those of us who were (and are) determined to expose the falsity of the Establishment messaging on the likes of Covid and climate change.
So now the spectre of my ending my days in prison looms ever more menacing as I will continue to insist on using science to refute what the Government and mainstream media promulgate under the banner of The Science (which is always so very settled).
(Incidentally, have you ever tried to stop paying your TV licence? Perfectly legally on the grounds that you don’t have a TV and never access any services to which the licence relates. This is what happens).
179 False communications offence
(1)A person commits an offence if—
(a)the person sends a message (see section 182),
(b)the message conveys information that the person knows to be false,
(c)at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience, and,
(d)the person has no reasonable excuse for sending the message.
(5)A person who commits an offence under this section is liable—
(a)on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both);
(6)In subsection (5)(a) “the maximum term for summary offences” means—
(a)if the offence is committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, 6 months;
(b)if the offence is committed after that time, 51 weeks.
180 Exemptions from offence under section 179
(1)A recognised news publisher cannot commit an offence under section 179.
(2)An offence under section 179 cannot be committed by the holder of a licence under the Broadcasting Act 1990 or 1996 in connection with anything done under the authority of the licence.
182 Interpretation of sections 179 to 181
(1)This section applies for the purposes of sections 179 to 181, and references in this section to an offence are to an offence under section 179 or 181.
(2)A person “sends a message” if the person—
(a)sends, transmits or publishes a communication (including an oral communication) by electronic means, or
(b)sends, or gives to an individual, a letter or a thing of any other description,
and references to a message are to be read accordingly.
(3)A person also “sends a message” if the person—
(a)causes a communication (including an oral communication) to be sent, transmitted or published by electronic means, or
(b)causes a letter or a thing of any other description to be—
(i)sent, or
(ii)given to an individual.
(4)But a provider of an internet service by means of which a communication is sent, transmitted or published is not to be regarded as a person who sends a message.
(5)“Encounter”, in relation to a message, means read, view, hear or otherwise experience the message.
(6)It does not matter whether the content of a message is created by the person who sends it (so for example, in the online context, an offence may be committed by a person who forwards another person’s direct message or shares another person’s post).
(7)In the application of sections 179 to 181 to the sending by electronic means of a message consisting of or including a hyperlink to other content—
(a)references to the message are to be read as including references to content accessed directly via the hyperlink, and
(b)an individual who is a likely audience in relation to the hyperlink for the purposes of section 179 is to be assumed to be a likely audience in relation to the linked content.
(8)In the application of sections 179 to 181 to the sending of an item on which data is stored electronically, references to the message are to be read as including content accessed by means of the item to which the recipient is specifically directed by the sender (and in this subsection “sending” includes “giving”, and “sender” is to be read accordingly).
Internet Platforms Obligation to Monitor
I will not try to identify specific sections and clauses in the Act on this issue as they are scattered throughout this enormous document – look for yourself. It is extremely difficult to be sure precisely what it all amounts to because it is so damned long. But one of the issues is that, in respect of illegal content, internet platforms and search engines will have obligations to remove certain content. But they cannot do so without monitoring said content. The matter becomes particularly acute for services such as WhatsApp and Telegraph which use encryption to ensure privacy – the very feature which has made those platforms popular. Breaking that encryption is the only way the service providers will be able to comply with the Act. Penalties are seriously severe. Schedule 13 para 4(1) states,
4(1) Where a penalty is imposed on a person in respect of a regulated service provided by that person, the maximum amount of the penalty for which the person is liable is whichever is the greater of—
(a) £18 million, and,
(b) 10% of the person’s qualifying worldwide revenue for the person’s most recent complete accounting period (subject to sub-paragraph (5)).
“person” here might mean a company. 10% of Facebook’s worldwide revenue would be quite an earner. Ditto the other major platforms (X/Twitter, YouTube, WhatsApp, etc). The reason for such a large penalty is simple: to scare platforms into compliance. They will be coerced into either undermining privacy by breaking encryption or else imposing draconian “take down” policies, and hence censorship by default.
Legal But Harmful
This is a masterstroke for the authoritarian.
It is apparently oxymoronic. The requirements of primary legislation define the law (at least, the de jure law). Yet here we have requirements to suppress behaviours being stipulated in primary legislation which the legislation itself classifies as “legal”. Eh? What?
The Act refers to communications which are “harmful” despite being legal. But who is to define, or rule upon, whether a communication is “harmful”? Section 234 does not help. It merely states that “harm” means physical or psychological harm. The answer is the issue I referred to earlier – Statutory Guidance issued by the relevant Secretary of State (or Ofcom as the agent in this case). The whole of chapter 6 of the Act is about “codes of practice and guidance”. Bing’s AI bot advises,
“The Act creates a new duty of care of online platforms, requiring them to take action against legal but “harmful” content from their users. The Act defines harmful content as content that gives rise to a reasonably foreseeable risk of a significant adverse physical or psychological impact on individuals. The relevant Secretary of State has the power, subject to parliamentary approval, to designate and suppress or record a wide range of speech and media deemed “harmful”. Therefore, it is the Secretary of State who decides if something is harmful or not under the Online Safety Act 2023.”
Ofcom is the agent which does the leg work. The Act requires them to consult a long list of people who might be best described as “the usual culprits”. This includes the Commissioner for Victims and Witnesses and the Domestic Abuse Commissioner. Readers of this blog do not need reminding how partisan will be the input from those parties, advice that will, no doubt, be taken as compelling.
However, unlike some cases, such codes of practice or guidance from Ofcom must be offered to both House of Parliament who have 40 days to resolve not to approve the draft. If they do not, Ofcom must amend it. (Parliament itself does not amend it).
Nevertheless, the buck seems to stop with the Secretary of State who can amend Ofcom’s guidance under the aegis of a raft of provisions, many of which would lend themselves to virtually any situation (e.g., “public safety”, “public health”…and with the amendments to the IHR pending, “for the purpose of securing compliance with an international obligation of the United Kingdom”. Hmm.)
An example of the bias that is likely via this process is provided by section 54, which speaks for itself…
54 OFCOM’s guidance about protecting women and girls
(1) OFCOM must produce guidance for providers of Part 3 services which focuses on content and activity—
(a)in relation to which such providers have duties set out in this Part or Part 4, and
(b)which disproportionately affects women and girls.
(2) The guidance may, among other things—
(a)contain advice and examples of best practice for assessing risks of harm to women and girls from content and activity mentioned in subsection (1), and for reducing such risks;
(b)refer to provisions contained in a code of practice under section 41 which are particularly relevant to the protection of women and girls from such content and activity.
(3) Before producing the guidance (including revised or replacement guidance), OFCOM must consult—
(a)the Commissioner for Victims and Witnesses,
(b)the Domestic Abuse Commissioner, and
(c)such other persons as OFCOM consider appropriate.
(4) OFCOM must publish the guidance (and any revised or replacement guidance).
In short, the masterstroke of using the concept of “legal but harmful” is twofold:
(i) it allows the Government and its chosen advisors (the “usual culprits”) to decide upon what “harmful” means (as opposed to a clearly stated law), and,
(ii) as it is not a criminal offence, due process is bypassed. You are not charged with a criminal offence because you have not committed one, and hence there is no court procedure. Instead these same people declare your “harmful” status and shutdown your communications and perhaps impose swinging penalties upon you. All without the bother of any judicial process deciding upon your guilt.
That all this can be done without any great concern being expressed by the public is readily explained…
- Virtually no one other than a few nerds like myself will read the Act;
- The mainstream media will not alert the public to what is going down, because they have a vested interest not to do so;
- And for those few who attempt to raise the alarm, the mainstream media stands ready to throw the usual “far right conspiracy theorist” label at them, and the public are happy enough to believe it because that is the path of least resistance.
The truth is powerless to make any impact. And so the authoritarian net closes around us.
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