Legal basis of UK Online Safety Bill questioned again over prior restraint clause

Scene set for legal challenges as concern over level of surveillance grows.

Legal opinion from Matrix Chambers on the communication screening provisions contained within the UK Government’s Online Safety Bill suggests that some clauses constitute prior restraint and unlawfully interfere with freedom of expression.

The legal opinion, drafted by Dan Squires KC and Emma Foubister for the Open Rights Group, says the bill “risks fundamental encroachments into the rights of freedom of expression to impart and receive information” and “will require prior restraint on freedom of expression which will occur through the use by private companies of proprietorial and unpublished processes”.

At issue are provisions set out in Clause 9 of the bill requiring online platforms to stop users from”encountering” certain types of “illegal content”. That content is defined as including material relating to terrorism, child sexual abuse, and anything assisting suicide and illegal immigration.

Social media platforms

In order to meet those obligations, say Matrix: “The bill will require social media platforms, through AI or other software, to screen material before it is uploaded and to block content that could be illegal. That is prior restraint on freedom of expression and it will occur through the use by private companies of proprietorial, and no doubt secret, processes.”

Requiring online content to be screened and blocked before it is posted represents “a sea change in the way public communication and debate are regulated in this country” said Matrix, and companies that do not comply will be sanctioned. Those sanctions include large fines and the possible imprisonment of management.

The opinion from Matrix concludes that the Act, if passed, would not be lawful because it must have some basis in domestic law and must be compatible with the rule of law, which means the requirements of accessibility and foreseeability must be met. To be lawful, it must also “afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise.”

Messaging services

This is not the first time the lawful basis of the Bill has been questioned. In November 2022, a legal opinion commissioned by Index on Censorship from Matthew Ryder KC concluded that technical notices issued by communications regulator Ofcom requiring messaging services to to deploy accredited tech to filter content amounted to state surveillance on a mass scale.

“Ofcom will have a wider remit on mass surveillance powers of UK citizens than the UK’s spy agencies, such as GCHQ (under the Investigatory Powers Act 2016),” Ryder wrote.

The legal opinion from Matrix comes after an open letter from 68 security and privacy academics amplified concerns voiced by big tech and privacy campaigners.

The Bill passed its second reading in the House of Lords this week without significant amendment and is expected to come into force this year. At which point, legal challenge can be expected. Companies including Apple and Meta have also indicated they could stop offering some services to users in the UK.