Salting the Bird’s Tail? The Online Safety Bill -v- Musk’s Twitter

28 November 2022 by Matthew Johnson

Elon Musk’s takeover of Twitter has made headline news over the past few months. Attention firstly focused on whether it would happen at all. Once the acquisition was completed, public opinion turned to Musk’s plans for the platform: to make Twitter a bastion of free speech in opposition to an age of censorship. As these reforms have begun to unfold, news outlets have looked at the treatment of staff during this period of ‘transition’.

What is interesting, however, is that these episodes are not taking place in a contextual vacuum. At the same time that Musk brags that “the bird is freed”, the Online Safety Bill passes through Parliament with an aim to control information on social media platforms. The Bill sets out to regulate what Musk’s Twitter sets out to deregulate.

Does the Bill salt the bird’s tail, caging what has only just been freed? Where should the balance be struck between social media freedom and social media protection?

What is Musk’s Twitter trying to do?

Musk has announced that his plans for Twitter centre on free speech. He states that:

“Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated.”

In line with this, he plans to bring back users who were suspended or banned from the platform previously.

Notably, this includes:

• Kanye West, who was banned for tweeting anti-Semitic views;
• Andrew Tate, who was banned for expressing his view that women should ‘bear some responsibility’ for sexual assaults;
• Jordon Peterson, who was banned for misgendering actor Elliot Page; and
• Donald Trump, who was banned for his role in the Capitol Riots

Musk’s Twitter is an attempt to facilitate free speech in as pure a form as is legally possible. So long as Tweet’s are within the law, Musk will not intervene.

What is the Online Safety Bill trying to do?

The Online Safety Bill approaches free speech from a different context. If ‘democratic functioning’ covers one side of the ‘freedom of speech coin’, then the other-side is illustrated by the tragic death of Molly Russell. Molly was a teenager who died of self-harm following the negative effects of online content, a recent investigation has concluded. This is the perspective from which the Online Safety Bill seeks to impose obligations on social media sites to protect users from harmful content.

The most controversial aspect of the Bill is section 11, which obligates large social media sites like Twitter to protect users from content that is ‘legal but harmful’. This means deleting content that is considered harmful, despite not being criminalised by the law.

Michelle Donelan, the Culture Secretary, has indicated that in response to backlash, section 11 as it currently stands will be diluted. One prediction is that the ‘legal but harmful’ rules will only apply to material targeted at children. While the exact amendments have not yet been presented in Parliament, it is likely that the rules will change for adult content but stay the same for younger users: “the bits in relation to children and online safety will not be changing.”

There remains, therefore, a point of conflict between the Online Safety Bill and Musk’s Twitter. If the Bill becomes law, Musk’s light-touch ‘only if illegal’ approach to intervention would not meet the obligations imposed on him to protect users from legal but harmful material.  

Where should the balance be struck?

In many ways this story goes to a fundamental question of political theory: what is the role of the State? Musk’s Twitter falls into the traditionally conservative desire for smaller government and a free market of ideas. The Online Safety Bill sits in the traditionally liberal preference for higher regulation to protect the more vulnerable.

Both the Online Safety Bill and Musk’s Twitter grow from admirable starting points. The Bill is an attempt to stop social media, a place where many of our minds and opinions are shaped, becoming a damaging force for mental health. Musk’s Twitter is an attempt to encourage debate and argument in a way that other social media platforms are not targeted towards.

It is likely, however, that both are occasions where the practical produces a different result from the theoretical. Section 11 of the Bill could in practice overstep its original aim to protect users from harmful content by taking with it valuable material that could be beneficial. Lord Sumption has warned that the algorithms used to identify and delete ‘legal but harmful’ posts are not capable of the precision necessary to separate harmful content from non-harmful content with sufficient accuracy. Equally, Musk’s ‘freedom of expression’ Twitter can be criticised for not confronting the real and dangerous effect that unregulated speech has on mental wellbeing. The floods of users leaving Twitter for the platform ‘Mastadon’ would suggest that this is a criticism held by many.

Your opinion on who should win in the case of The Online Safety Bill -v- Musk’s Twitter could depend on any number of things. One factor may be, however, how you view the State: is the State a protector or a facilitator? In our increasingly digital age, perhaps it should not be surprising that the mechanics of a social media platform would raise questions of such political significance.

Further reading on this topic on the UKHRB

• On Law Pod UK, Rosalind English talked with Lord Sumption about the controversial ‘legal but harmful’ section of the Online Safety Bill
• Rafe Jennings dissects the Online Safety Bill in two parts: Part 1 and Part 2