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Let’s make Nicola Sturgeon the content moderator for the entire UK!

I received this email from the estimable Free Speech Union the other day. So far as I can tell, it is not available as an article on their website. It should be. (UPDATE: Fear not, the FSU are getting the word out. Go to “The Critic” for a very slightly different version. Hat tip to David Norman, who pointed out a shorter version at the “Daily Sceptic”.)

Yesterday brought news that the Government is due to remove the ‘legal but harmful’ clause from the Online Safety Bill, a major victory for all the free speech groups that have been campaigning for this, including the FSU (i, Sun, Guido Fawkes). As Fraser Nelson points out in the Spectator, Rishi Sunak and Culture Secretary Michelle Donelan deserve credit for having made good on their pledges to look at this clause again.

However, the battle is not over. As FSU General Secretary Toby Young makes clear in today’s Telegraph, there’s a little-known flaw in the Bill that risks making Nicola Sturgeon the content moderator for the whole of the UK.

The FSU highlighted this flaw in discussions with Chris Philp, then the Digital Minister, earlier this year. The definition of illegal content in clause 52 (12) of the bill states that the content social media platforms will have a legal duty to remove in every part of the UK will be content that’s illegal in any part of the UK (“offence means any offence under the law of any part of the United Kingdom”). Failure to remove such content could result in those platforms being fined up to 10% of their annual global turnover.

The obvious difficulty with that is it means the big social media companies like YouTube, Facebook and Twitter would have to remove something it’s unlawful to say in Scotland in every part of the UK — hence the claim that the Bill will effectively appoint Nicola Sturgeon as content moderator for the entire population.

That’s particularly concerning given that last year Scotland’s Hate Crime and Public Order (Scotland) Act received Royal Assent. Among other things, this “authoritarian mess” of an Act (as the FSU’s Scottish Advisory Council member Jamie Gillies describes it for Spiked) makes it a criminal offence, punishable by up to seven years in prison, for a person to behave in a threatening or abusive manner or to communicate material considered threatening or abusive to another person with the intention of “stirring up hatred” against people on the grounds of: age; disability, religion, sexual orientation, transgender identity, or variations in sex characteristics (intersex).

In effect, if a feminist says in Scotland that she doesn’t think transwomen are women, she could be prosecuted for stirring up hatred. And because of the clause in the Online Safety Bill that states that “offence means any offence under the law or any part of the United Kingdom”, the big social media platforms would also then have to remove any such content across the whole of the UK.

The article went on to say that the Government had made at least some attempt to close this loophole by introducing an amendment. The text of the amendment left me baffled, but it seemed to be well-intentioned. But we are not out of the woods yet:

The amendment is still unsatisfactory, however, because it creates a loophole whereby a future minority Labour Government, knowing it wouldn’t get some draconian new anti-free speech law through the House of Commons, could simply approve that law after it’s been passed by Nicola Sturgeon’s devolved government in Holyrood.

17 comments to Let’s make Nicola Sturgeon the content moderator for the entire UK!

  • David Norman

    It’s available on the equally estimable website of the Daily Sceptic. It was published on 5th November.

  • Agammamon

    People keep telling me that Queen Elizabeth was a great queen and all – but the UK is the way it is because she refused to even *speak up* about what’s happening there, let alone refuse to be party to its implementation.

    ‘Royal Assent’ for such a bill!

  • Nicholas (Unlicensed Joker) Gray

    The job of the Monarch is to assume that Parliament represents the Will of the People. The job of the people is to elect members who will do a good job, or members who will spice up Parliament. How do you think Boris got his job?

  • Paul Marks

    No let us not make Nicola Sturgeon “content moderator” for the United Kingdom – indeed let us not have a legal “content moderator” at all.

    Let us restore Freedom of Speech – which means repealing the various Acts of Parliament that make expressing opinions “crimes”.

  • Paul Marks

    It is the anniversary of the fall of the Berlin Wall – the Collectivists and their “Social Justice” can be defeated. Freedom of Speech, and other basic liberties, can be restored.

    We must fight on.

  • Sam Duncan

    with the intention of “stirring up hatred”

    So they have to prove intent. Therefore no statement can be considered illegal until someone’s been convicted. And even then, it’s only that particular statement; there’s still the possibility that someone could repeat it, verbatim, without the intention of “stirring up hatred” against people who enjoy special protection under the law. (He might, for example, repeat it with the intent of stirring up hatred against the “Scottish Government”…)

    It’s chilling enough that someone can be convicted for saying or writing something and that equality under the law now lies dead in a ditch, but leaving those aside, it would seem to me that it’s the Scottish courts who would become Britian’s content moderators, not His Majesty’s First Minister.

  • Steven R

    If we’re at the point where saying an objective truth (e.g. a man is not a woman) constitutes “hate speech” and can result in official censure and/or prison time and the Courts go along with the madness, I’m not sure Free Speech can be saved.

  • Paul Marks

    Sam Duncan – NO, they (the police and so on) do not have to prove intent. There are many laws in the United Kingdom that attack Freedom of Speech that do not require proof of intent.

    Scotland is a bit worse, they have special laws of their own, but the laws “south of the border” are also an outrage.

  • Beaneater

    I’m trying to figure out how such a fine would work in practice.
    “Elon, someone on Twitter said something that offended someone, and you didnt delete it. Pay a £1,000,000,000 fine.”
    “No.”
    “…”
    Then what happens? The UK shuts off access to Twitter? Does Elon really care? I mean, I’m sure he cares somewhat, but probably not enough to pay a massive fine; maybe not even a tiny one, just on principle.

  • Steven R

    Put our a warrant for his arrest and demand the US extradite him?

  • Steven R (November 9, 2022 at 6:45 pm) – or anyone else who knows, if Scotland demanded that the US extradite Elon Musk (or anyone else whose ‘hate-speech’ offence was committed over the web from the UK), would the first amendment make it unconstitutional for the US to comply?

  • bobby b

    Since Twitter has a “substantial presence” in the UK – it has offices and equipment there – UK courts could take legal jurisdiction for the purpose of levying the fine and attaching assets.

    Twitter has offices and equipment in Manchester and London. The UK would have no jurisdiction over Musk himself, but it does have legal jurisdiction over whatever Twitter assets are within the UK. If I had a house in London, but never went there, the UK could enforce a UK judgment against me by taking the house.

    In many circumstances, judgments obtained in the UK can be enforced in the US, against US assets. But there would be an issue trying to enforce a judgment here that stems from a violation of our Constitutional protections.

    Plus, the UK could choose to block Twitter on the UK internet, depriving Twitter of a good chunk of income.

  • Steven R

    Niall Kilmartin wrote: Steven R (November 9, 2022 at 6:45 pm) – or anyone else who knows, if Scotland demanded that the US extradite Elon Musk (or anyone else whose ‘hate-speech’ offence was committed over the web from the UK), would the first amendment make it unconstitutional for the US to comply?

    I’m not a lawyer and didn’t stay in a Holiday Inn Express last night (it’s a joke from a series of TV ads in the US), but I don’t think so. The First Amendment basically restricts the US government (and thanks to the Establishment Clause, state, county, city, etc.,), so they could extradite him to another country. They certainly would if it was a gun charge. But would they, say, extradite the leader of Scientology to a country where it has been outlawed?

    And that’s before we throw in the whole thing where Musk is hated in some circles of power. And the UK is not some third world nation we can safely ignore. It is part of that whole “special relationship” we have with the rest of the Anglosphere. Would we jeopardize that over Musk? We tossed that USAF major’s wife back to you pretty quick when she did that hit and run.

    It would be an interesting case to bring before the Supreme Court.

  • Paul Marks

    Steven R. – it would be a very simple case.

    The Supreme Court would tell the British government (and the Biden Administration – if they sided with the British government) to GO TO HELL – and they would be correct to do so.

    However, that is the present Supreme Court – a couple more Supreme Court Justice appointments and the 1st Amendment is dead, and the 2nd Amendment, and much else.

  • bobby b

    Look to the Treaty of Extradition between the two entities (below).

    I see that the first provision in the “extraditable offenses” section says this:

    “An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty.”

    So, if Musk’s conduct would be protected here in the US by the First Amendment, I don’t believe there would be an extraditable offense.

    https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiouuLlh6L7AhWWlYkEHfe0ASgQFnoECAsQAQ&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F243246%2F7146.pdf&usg=AOvVaw0BxlOmc_9xnqzGp8VJLZfd

  • From bobby b’s summary in his two comments above, it appears that Twitter’s UK facilities are not in Scotland (and, as I thought, the US could not legally extradite Elon).

    Thus remedying the flaw Natalie highlights is central to this particular case IIUC.

  • Paul Marks

    bobby b and Niall.

    As I have just pointed out, the 1st Amendment (and the rest of the Constitution of the United States) depends on the Supreme Court not having more Collectivists appointed to it.

    If it does – then the Bill of Rights will be destroyed.

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