What has the online harms bill got to do with universities and students?

That’s generally because students spend a lot of time online, and specifically because a lot of the free speech storms that surround the scertor are played out on the social media platforms that Culture Secretary Oliver Dowden has regulatory responsibility for.

So I’ve been eagerly awaiting the full government response to the consultation on its “online harms” white paper which Dowden presented to Parliament today.

The press pre-briefings trailed an important concept – that as well as expecting social media firms to tackle illegal activity taking place online, and preventing children from being exposed to inappropriate material, legislation would also address other types of harm caused by “legal but harmful” content and activity accessed by adults.

That matters in the context of campus freedom of speech. For a number of years the government and even bodies like the EHRC have been stressing the “freedom to” (speak) end of the classic moral debate over “freedom from” (harm), with a stress placed on freedom of speech “within the law”. EHRC’s guidance even mentions it as follows:

Freedom from harm may refer to a number of the legal duties mentioned in this guide, including an SU’s duty of care and responsibilities to protect students from unlawful harassment, discrimination and hate crime. SUs are entitled – and required, to the extent that the speech may break the law – to consider “harm” that someone’s views may cause to some of their members, when deciding whether to invite a speaker to an event they are organising. However, if a speaker has already been invited by an SU society or group and the speech will be lawful, the SU will need to consider their obligations under their HEP’s s.43 code of practice. If an SU cancels a speaker in these circumstances, their HEP has a duty to take reasonably practicable steps to ensure the speaker event can proceed.

It’s always been an odd paragraph that, implying that it’s only students’ unions that have a duty of care or a concern over harms, and that the Education Act 1986 somehow trumps concerns about harms.

Oliver Dowden was not talking about the campus culture wars today. But as trailed, he did talk about the need to balance responsibilities and did indeed discuss the harm that can be caused to adults by “legal but harmful” content on social media.

A forthcoming online harms bill will set out a definition of harmful content and activity, and in the legislation companies in scope will have a duty of care towards their users. It will naturally require companies to prevent the proliferation of illegal content and activity online, tackle harms to children and:

Will hold the largest tech companies to account for what they say they are doing to tackle activity and content that is harmful to adults using their services.

To meet that duty of care, companies in scope will need to demonstrate an understanding of the risk of harm to individuals on their services and will have to put in place appropriate systems and processes to improve user safety. Ofcom will be charged with overseeing and enforcing companies’ compliance with the duty of care.

The big legal battles are obviously to come. The legislation on content or activity will only include stuff which “gives rise to a reasonably foreseeable risk of harm to individuals”, and which “has a significant impact on users or others”. You can imagine that what Dowden has in mind is conspiracy theories from anti-vaxxers, and he specifically mentioned material on eating disorders, self-harm and suicide – but you can also imagine plenty of issues that flare up in the culture wars where one person’s freedom of expression is another’s harmful oppression. And some of those for the average student will be on a different side of the moral debate than for your average newspaper columnist, for example.

The other interesting nugget in here is on “cancel culture” and “pile-ons”:

Our criminal law must also be fit for the digital age and provide the protections that victims deserve. The Law Commission is currently reviewing whether new offences are necessary to deal with emerging issues such as cyber-flashing and “pile-on” harassment. We will carefully consider using the online harms legislation to bring the Law Commission’s final recommendations into law, where it is necessary and appropriate to do so.

Anyway – this is DCMS not DfE, and Dowden was very keen to stress that freedom of expression would be protected. But it’s both interesting and refreshing to see the government recognise the competing moral duties here in a related policy area, and helpful to see the idea that large organisations can and should have a duty of care over adults, and deserve some protection from harm.

That balance always has been important to both universities and their students’ unions, and if this legislation finds a way through those competing concepts it might well end up useful in higher education too.