'Tackling online false information in the United Kingdom: The Online Safety Act 2023 and its disconnection from free speech law and theory' by Peter Coe in (2024) Journal of Media Law comments
In the UK, there has been consistent recognition from a variety of actors, including the UK government, that the dissemination of false information can be harmful to individuals and the public sphere. It has also been acknowledged that this problem is being exacerbated by the role played in our lives by the likes of Google, Facebook, Instagram, and X, and because the systems that were in place for dealing with this type of content (and other illegal and/or harmful content), prior to the introduction of the Online Safety Act 2023 (OSA), were designed for the offline world, and were (and in some cases, still are) outdated and no longer fit for purpose.
The UK’s online harms regime has intensified this debate. The regime began life in April 2019 as the Online Harms White Paper, morphing into multiple iterations of the Online Safety Bill (OSB), published in its original form in May 2021, and finally crystallising as the OSA, which was enacted on the 26th of October 2023. On the one hand, it is acknowledged that legislation placing statutory responsibilities on internet services to prevent the publication of false information (and other illegal and harmful content) may benefit society and public discourse. This is because, in theory at least, by helping to decrease the volume of false information we are exposed to, such laws should reduce the opportunities for the public sphere to become distorted. As citizens we should be able to assess, with greater confidence, the veracity of information available to us, and in turn, use this information, and the trust we have in it, to make positive contributions to public discourse.
But, on the other hand, the OSA has been (and before it, the OSB was) met with significant resistance from a variety of actors because of the potential threats to free speech that it presents. Indeed, since the publication of the White Paper, and the initial draft of the OSB, the regime has been shrouded in controversy. The OSB was subject to numerous amendments, and at one stage, it looked as though it would be scrapped altogether. Yet despite this, at the time of writing, the OSA has recently been enacted, albeit the overall shape of the regime remains unclear, because much of the legal detail will be contained in secondary legislation. Therefore, debates on the efficacy of the OSA will continue, and only time will tell what its ultimate impact on free speech will be.
Notwithstanding this uncertainty, the purpose of this article is to interrogate the regime’s compatibility with free speech law and theory. In doing so, it begins with an explanation of what is meant by false information, and how the phenomenon has been exacerbated by the internet. This is followed by analysis of the pre-OSA system for dealing with this content, and an explanation of why it did not work, as aspects of it have a bearing upon the OSA regime. Next, the contours of the free speech framework are sketched, including relevant jurisprudence of the European Court of Human Rights (ECtHR), and the theories underpinning it that are particularly relevant to online false information. In this section I explain why these theories are flawed in this context, and therefore how these flaws could justify the creation of laws to tackle online false information. Yet, as I go on to suggest in my analysis of the OSA, which follows, this creates a paradoxical disconnect between theory and law, in that although the flaws in the theories may justify the creation of such laws – which manifests as the OSA – its creation arguably conflicts with the ECtHR’s jurisprudence, and the spirit of its theoretical foundations, and could inadvertently interfere with free speech. Finally, the article concludes with some potential solutions for meeting this challenge that do not erode one of the core fundamental human rights.
