By Elena Siniscalco
In the context of a tumultuous political landscape, the Online Safety Bill, designed to regulate tech giants, fell off the agenda as a result of a “lack of Parliamentary time”. Under a Liz Truss premiership, it would be brought back. Nadine Dorries, the Culture Secretary has said it will make the UK “the safest place in the world to be online while defending freedom of expression.” But the focus on policing content and increasing surveillance rather than addressing the business model and the political narrative that threatens human rights online and off, does little to ensure our safety.
The powers it gives to the Culture Secretary to decide what kinds of speech should be policed online and how our communications should be monitored are, in themselves, a significant threat to freedom of expression.
It is now well accepted that “human rights apply online as they do offline”. And the Online Safety Bill is a response to the obvious need to regulate the online space. But it does not exist in a vacuum and a raft of other legislative proposals are a very real threat to our rights.
Government proposals to water down data protection law, tear up the Human Rights Act, limit protest rights and access to judicial review will do much more to undermine online safety than the new laws would do to protect it. For real safety, we need the rule of law and enforceable legal rights.
The internet was not “a thing” when Douglas Maxwell-Fyfe, the Conservative MP and lawyer tasked by Churchill to give Europe a legally enforceable Charter of Rights sat down with his colleagues to draft the ECHR in the 1950s. But interpretations of the right to private life have developed to encompass online privacy and data protection, just as the right to freedom of expression has embraced online speech in the judgments of the European Court of Human Rights.
European human rights law is a “living instrument” that evolves to reflect the modern context. A glance across the Atlantic flags the dangers of an alternative approach – the right to abortion stripped away based on legal interpretations that drag women back to the 18th century, overlaid with the problem of their reproductive status being for sale in the open market of personal data and a poisonous online environment driving deadly misogyny like the Incel movement. We cannot tie human rights law into a pre-technological past and we cannot ignore human rights law when we try to regulate for our technological future.
The Human Rights Act has been under political attack pretty much since its inception. Tony Blair was the first to realise that it brought peace to Northern Ireland but it also put legal brakes on many of the less peaceful things he wanted to do. That is the thing about human rights laws, they curb state power and they force the state to do its job protecting us from each other – and itself. It is, perhaps, unsurprising then that governments have a fraught relationship with human rights. But we should not allow that to cloud our judgment.
Government rhetoric on human rights, lawyers and the legal system is itself a threat to safety, online and off. Some of my friends and colleagues in the UK are experiencing this very directly in real life while representing journalists and others who experience the harnessing of online hate as a tool of the State to repress dissent around the world. One colleague, Jen Robinson, won her case in Strasbourg last month as the British Government settled, accepting that it was likely she had been put under surveillance and her communications intercepted in violation of her rights because she represents Julian Assange. And, as a lawyer who acted for Amber Heard in the UK defamation trial, her social media feeds have been filled with horrific bile in the fallout from the Depp v Heard defamation trial in the US.
If you ever found your rights in danger, you would want Jen on your side in court. But she and other colleagues are threatened in the real world and online for daring to stand up for human rights at home and abroad. The threats they experience are a direct result of the toxic political discourse on human rights combined with online information systems that fuel and amplify hate, particularly against women.
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