Another post analysing aspects of the draft Online Safety Bill.

Throughout the development of the government’s Online Harms policy, a central concern of ORG and other human rights organisations is how any legally mandated content moderation policy could practically be achieved. The algorithmic moderation deployed by most social media companies is notoriously literal, and the human review of content is often performed by people who are unaware of the context in which messages are sent.

These flaws result in false positives (acceptable content being removed) and false negatives (unacceptable content remaining visible).

The draft Online Safety Bill considers two distinct types of content: illegal content, and content that is legal but which has the potential to cause harm. The social media companies will have to abide by OFCOM’s code of practice in relation to both.

The definitions of these two types of content are defined are therefore crucial to the coherence of the new regulatory system. Ambiguous definitions will make it harder for social media platforms to moderate their content. If the new system causes more acceptable content to be taken down, while allowing illegal and/or harmful content to remain on the platforms, then the law will be a failure.

Read the rest of this post on the Open Rights Group blog.

This blog has been quiet recently. I’ve been busy with a lot of things in the last few months, one of which was providing some assistance to David Price QC and Jonathan Price with an application to the European Court of Human Rights at Strasbourg.

Malkiewicz v UK: ECHR application that exorbitant cost of defending UK defamation claims breaches Article 10 following “Bleak House” libel case. Application form here: https://t.co/JSzqzuuuEZ drafted with @J0nathanPrice and help from @robertsharp59

— David Price KC (@lawyersmedia) November 29, 2021

The application relates to the Serafin v Malkiewicz case, which went through a full cycle of litigation between 2015 and 2021. The Supreme Court gave a ruling on the proper interpretation of section 4 of the Defamation Act 2013 (public interest defence).

But there was also an issue of whether the original libel trial was fair to the Claimant, who had acted as a Litigant in Person. The Supreme Court said that it was not, and sent the whole case back to the High Court for a full retrial. Regular readers of this blog will recall the crowd-funding appeal I set up in April, to assist the Defendants with funding the case. It would have been darkly ironic if they had been forced to act as Litigants in Person themselves during the re-trial.

Eventually the case was settled on a “walk away” basis. The Defendants admitted nothing, but had to forgo any right to recover costs from the Claimant.

The Defendants have therefore spent more than half a million pounds dealing with a libel action, without ever being found legally liable for anything!

Back in 2011 when the Defamation Bill (as it then was) was being scrutinised by Parliament, the high cost of defending a defamation claim was cited by pretty much everyone as a huge chill on free speech. Ministers repeatedly said they would deal with the issue, but their various proposals withered on the vine and nothing was implemented.

The application to Strasbourg submits that the unreformed costs regime relating to defamation actions, which has so profoundly affected Nowy Czas, is a breach of Article 10.