What Next? Submission to Online Harms Consultation


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Question 1: This government has committed to annual transparency reporting. Beyond the measures set out in this White Paper, should the government do more to build a culture of transparency, trust and accountability across industry and, if so, what?

Supporting the right to artistic freedom

Supporting the right to artistic freedom of expression is an integral part of What Next?’s mission to create the best possible conditions for art and culture to thrive in this country.

Artistic use of ‘harmful’ content

Whilst we acknowledge that there is a need to manage online harms where illegal activity is taking place, and to safeguard children where necessary, we are concerned that the measures set out in the White Paper fail to recognise artists’ legal use of harmful content as a vital source of subject matter.  Our appendix lists just some of contemporary plays and other artworks. that use content that would potentially fall within the scope of the online harms, and that could be wrongly caught up in regulation, take down and possible penalties if the plans set out in the White Paper are taken up.

Complexity, ambiguity, nuance, satire

We are concerned that the White Paper has not attempted to accommodate the significant complexities relating to artistic expression and harmful content. Nuance, ambiguity, satire, irony and the creation of ‘harmful’ characters should all be explicitly considered, with measures and provision put in place to ensure that no artistic work is censored or discouraged due to the creation of a hostile environment to free expression.

Freedom for artists to push boundaries

In its current 10 year strategy, Arts Council England (ACE) states:

Art is about the discovery of the unknown and unimagined. Artists will innovate, and push boundaries.’ Further on ACE states that ‘we want to offer arts and cultural organisations the commitment and freedom that allows them to experiment and take risks.’  The proposals in the White Paper could create an environment in which artists do not feel free to push boundaries and take risks.

Fuelling a culture of caution

This question goes to the heart of our concerns that the existing proposals will create a culture of mistrust and lack of transparency. Decisions to censor work could be taken outside a framework of legal accountability: by companies, platforms or by the independent regulator: leading to increased censorship of artists and art.  The imposition of heavy fines on, and potential criminal action against, senior executives of companies could fuel a culture of over-caution, where perfectly legal artistic work exploring the harms within the scope of this White Paper, could be taken down to avoid getting caught up in the regulatory framework.

Double standards will undermine trust

Artists are skilled at pushing the boundaries of what is acceptable and legal, whilst remaining within the bounds of the law.  We are concerned that challenging, provocative yet perfectly legal artistic expression that is acceptable in the offline world, will fall foul of regulation online.  This could drastically limit what can be expressed by artists, many of who rely almost entirely on the internet to promote their work; it would also impact negatively on the debate that artwork naturally generates. We therefore urge the government to apply existing legislation, rather than creating any new law to ensure that the new regulation doesn’t outlaw legal expression.

Transparent, rights approach to build trust

Artists increasingly use the internet as their most important tool to access an audience, opportunity and livelihood. The internet opens up unprecedented reach for artists at all stages of their careers and brings into play, not only the rights of artists and audience to free expression and the free exchange of ideas without interference from the state, but also the economic rights of the artists. Unfortunately, the recommendations in this White Paper could render multiple platforms, currently available to artists, useless and could be in violation of multiple rights, if artistic content was to be removed.  To build trust with the arts and cultural sector, transparency reporting should ensure that companies are implementing regulations in a way that takes human rights, and in particular, rights to freedom of expression, cultural and economic rights, into account. 

Balance between safety and freedom

We believe that, in the bid to make the UK the safest place in the world to be online, the White Paper has lost a proportionate sense of balance and more work needs to be done to create a more nuanced and flexible solution.

Respecting rights and international law

We would like to draw attention to the international legal instruments that should be taken into account when drafting this legislation: The International Covenant on Economic, Social and Cultural Rightsarticle 15 (3) under which States ‘undertake to respect the freedom indispensable for…creative activity’ and in article 19 (2) of ICCPR, which states that ‘the right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds “in the form of art’.

Existing guidance on rights-based approach

We are concerned that the current proposals don’t take a strong enough stance to protect and promote existing legislation and rights framework. We therefore promote the important role of the rights approach to regulation as put forward by David Kaye, U.N. Special Rapporteur on Freedom of Expression, in the first-ever U.N. report that examines the regulation of user-generated online content.  The Special Rapporteur examines the role of States and social media companies in providing an enabling environment for freedom of expression and access to information online.

We draw attention to the recommendation from U.N. Special Rapporteur, David Kaye’s, report on regulation of user-generated online content:

States should refrain from adopting models of regulation where government agencies, rather than judicial authorities, become the arbiters of lawful expression. They should avoid delegating responsibility to companies as adjudicators of content, which empowers corporate judgment over human rights values to the detriment of users.’

Transparency reporting

On transparency reporting, Kaye’s report recommends: ‘States should publish detailed transparency reports on all content-related requests issued to intermediaries and involve genuine public input in all regulatory considerations.’ The transparency reporting would, in the context of this report, aim to demonstrate how the regulator had not acted in violation of rights and international law.

Accountability and Artificial Intelligence

Given the massive volume of text and imagery that is uploaded every hour on larger platforms, the task of moderating content unavoidably falls to AI. There is a growing body of evidence of AI’s failure to effectively manage the legal, subtle, ironic, provocative and satirical language and images created by artists. There is also evidence of the in-built bias within many of the algorithms that are used to manage these processes.  Human accountability is needed to differentiate between the use of harmful subject matter to explore and expose difficult content, and harm itself. The White Paper should, at the earliest stage, take properly into account how regulation would be delivered – whether by DCMS, Big Tech, the Police, the proposed regulator, or other; and to ensure that there is capacity and associated resource to deliver an agreed, effective and proportionate level of regulation. 

Lack of clarity in the regulation could lead to lack of accountability

Attention needs to be paid to ensuring clarity, which is challenging given the complexity of the task. Rather than reinventing the wheel, the Bill could make use of the excellent work already done by UN Special Rapporteur, David Kaye – see below. We are extremely concerned that ‘harm is not defined within the Paper. We believe this ambiguity is a significant and highly problematic issue.

What protection for freedom of expression is set out by the white paper?

We welcome the report’s assurance that:

The regulator will also have an obligation to protect users’ rights online, particularly rights to privacy and freedom of expression. It will ensure that the new regulatory requirements do not lead to a disproportionately risk-averse response from companies that unduly limits freedom of expression, including by limiting participation in public debate. Its regulatory action will be required to be fair, reasonable and transparent.

However, we strongly believe that the statement needs to go further and would need to take full and explicit account of artistic expression that deals with harmful content. Some kind of ‘fair use’ style exemption that acknowledges the multiple legitimate, if provocative and challenging, ways that artists use ‘harmful’ content.


More time is needed to develop this policy and legislation to ensure that the proposals deliver on trust, transparency and accountability.

We recommend:

  • MORE TIME: for more careful and comprehensive navigation of the implications for artists, art, artistic expression and all related and ensuing debate and discussion pertaining to it
  • MORE CONSULTATION: to engage directly with artists and arts organisations to ensure that transparency, trust and accountability can be developed at this policy making stage. This would include the development of additional user-friendly consultation tools which young people and artists can engage with directly.
  • MORE BALANCE: to engage with those whose livelihoods and legal expression are at risk of being affected by the scope of the legislation; ensuring that penalties against excessive censorship are not unfairly applied. We would like to see a much more detailed rationale behind the need for any new legislation in this area, as we feel that the current provision would be adequate if properly interpreted and applied.
  • MORE CLARITY: a clearer and more precise definition of harm needs to be arrived at that targets harm in a proportionate and legal manner. We would also like further clarity on the capabilities and capacity of both Big Tech and the government in making these proposals a reality.
  • MORE ASSURANCE: that the government will adopt measures that will specifically protect artistic freedom and to ensure that the measures do not encourage disregard for freedom of expression
  • MORE EVIDENCE: to create clear evidence base for the need for regulations
  • MORE RIGHTS BASED APPROACH: to take a rights based approach to regulation as laid out in the UN Special Rapporteur’s report on regulations relating to user-generated online content.

What Next Submission to Online Harms Consultation

Date added: 29 May 2021