A David’s Law That Will Work and One That Won’t.

Paul Goodman

October 19, 2021.

The choice isn’t between David’s Law and doing nothing. It’s between a David’s Law that will work and one that won’t. Earlier this year, Twitter banned Donald Trump. But it has not yet got round to barring Xi Jinping. Indeed, an Australian academic was removed from the platform for posting tweets mocking China’s president (before later being reinstated). Which helps to make the point that social media isn’t necessarily politically neutral: American conservatives complained after Twitter shut down Parler’s account; feminists claim that it censors factual statements in deference to trans ideology, such as: “men are male”.

Only last week, YouTube removed footage of a speech by David Davis critical of vaccine passports. Do we really want to oblige the social media giants to remove more material faster if their woke-flavoured worldview gains more global power in consequence?

Perhaps Ofcom should make the necessary judgements instead. But can it be trusted to get them right? For example, it has been accused of “stifling criticism” of the Government’s Covid policy – much the same critique as was made of YouTube over the Davis speech.

Are right-wingers happy about Ofcom's relationship with Stonewall under the recent leadership of Lord Burns? Would left-wingers be happy if his permanent replacement was the man that Boris Johnson seems to want: Paul Dacre?

To ask such questions is to sail against the prevailing wind. In the wake of the wicked killing of David Amess, there are cries for something to be done – the removal of anonymous accounts, say; or yet more powers for Ofcom: both to be written into the Online Harms Bill.

It’s worth pointing out in passing that there’s no evidence that social media played a part in the deaths of either Amess or Jo Cox: a neo-nazi extremist murdered the second; a man reported to be an Islamist extremist has been arrested on suspicion of murdering the first. Nonetheless, MPs are raging against the abuse, vilification and threats that they and their families have to put up with – and rightly. Some have been stalked.

But those questions and others like them are important. Would any gain from banning anonymous trolls from Twitter here be worth the loss of anonymous whistleblowers, say? What about anonymous activists abroad living under oppressive regimes – in, say, Venezuala?

Are most trolls really anonymous in any event? You get the drift. I’m not a libertarian, for better or worse. I believe that vulnerable people should be protected against child porn, terrorist recruitment, online abuse, and encouragement to self-harm. (The idea of an Online Harms Bill gathered support after the suicide of Molly Russell, a 14 year old girl who committed suicide in 2017 after seeing images of self-harm on Instagram, Snapchat and Whatsapp.)

In this context, some argue that Twitter is a natural monopoly. Others, that it isn’t – citing a mass of other social media outlets such as Facebook, Instagram or Pinterest. But none of these occupy the position of Twitter in the public square as a forum for debate. So it is a matter of public interest if that debate becomes slanted or skewed. Or if social media uses algorithms in such a way as to direct its users from mainstream stuff to extremist material. Conservatives give the public interest a certain weight, or should do.

However, we should also be suspicious of big extensions of state power, especially if the social media giants are incompetent as well as partial (or uncompetent, perhaps: Facebook’s algorithms apparently confuse cock fights and car crashes).

And if asking difficult questions now is against the trend, then perhaps it’s the best time to ask them – before we again live out the cycle of hasty legislation, unexpected consequences and reverse ferret, not least in the media, as exemplified by the Dangerous Dogs Act. Are all these niggles simply a cover for doing nothing – for retreating behind a series of arguments about how difficult it is to act, since the social media behemoths are based abroad and different countries have different legal frameworks and conceptions of, say, libel? (That the European Court of Justice has ruled that Facebook must take down libellous content not just in Austria, but globally, is an indication of how muddy the waters of responsibility are.)

As it happens, there is an alternative, or at least a complement, to giving more powers to Ofcom. Namely, self-regulation – but with a sting in the tail: namely, treating the social media companies as publishers rather than platforms. After all, if they behave like a publisher – as in the case of Trump and Twitter – they should surely be treated like one. It would follow that claimants had the power to sue Twitter itself, say, if it carried a libel, rather than just the person who wrote it. Such a change wouldn’t address abuse and threats, but the publisher would be liable for these – just as The Times, say, would be now. Perhaps the commercial model of the social media companies wouldn’t be able to survive such a change.

If that is so, then so be it. Social media has brought at least as many blessings as curses: purely by way of arbitrary example, think of how teenagers unable to go to school during lockdown were able to use it to stay in contact with friends.

But libel, abuse and threats are too high a price to pay if left unaddressed. There is talk of turning the Online Harms Bill into “David’s Law” in honour of the slain Southend MP. Nothing wrong with that – though it’s a chilling thought that one must sometimes have to die if change is to come, as with the announcement yesterday that Southend will gain city status.

Amess was an activist MP and would doubtless have voted for the Bill, even if social media had nothing to do with his death. But the choice isn’t between David’s Law and Doing Nothing. It’s been a David’s Law that will work and one that won’t.