What, Exactly, Is ‘Legal But Harmful’ And Who Gets To Draw The Line?

Giving the government and lickspittle quangos powers to prevent legal discourse under a vague definition of ‘harm’ is something that we should all object to.

As we sit watching the British political system implode, the intricacies of the Online Harms Bill might not seem all that important. But when Boris Johnson’s clammy hands have been finally prised off the keys to Downing Street and he’s carted off to the funny farm, we’ll still be facing this much-lamented law and its super-vague fall-out.

There is so much in this Bill that is awful that we have struggled to know where to begin with it, which is why we have not been writing about it endlessly. It’s just too exhausting a subject, frankly. But the one aspect that worries us more than anything is the part that will clamp down on – that is, make a criminal offence to host – ‘legal but harmful’ content. Now, sorry – but that’s a little too vague for my liking.

While supporters of the Bill have long trotted out one or two examples of material that is not against the law yet is still somehow very, very dangerous, it has always been the same old things – pro-anorexia Facebook pages, that sort of thing. Well, I think that we can all agree that anorexia is a terrible thing and no one should be encouraged towards it. We might, however, question if those pages actually encourage people to become anorexic or simply provide a space for those already so inclined – after all, it seems likely that the only people who are actually searching such content out will be those with a pre-existing interest in it. That’s a hard concept for the censorial to grasp – their entire mindset is based around the idea that people simply stumble upon any sort of questionable content by accident – perhaps by mistyping ‘arno replica’ into a search engine – and suddenly find themselves confronted with images and ideas that had never crossed their minds before, but which automatically seem like a fantastic idea. It’s an intriguing theory.

Obviously, pro-anorexia pages exist and we probably should be concerned about the reinforcement of bad ideas. But here’s the thing: the British government – of whatever party and leadership – has never exactly been backward at coming forward with legislation to outlaw whole swathes of content and ideas, often based on very scant evidence of harm – look at the Extreme Porn laws, pushed through (and then expanded) without any evidence of widespread (or even passing) beyond hearsay and a ‘monkey see, monkey do’ belief from campaign groups. Remember, that particular law came about because of one murder case where the killer had visited ‘violent porn’ websites – some of which wouldn’t even be made illegal in the wording of the eventual Bill, ironically enough – but who was, it turned out, had an established interest in the particular violent sex acts long before the internet was even a thing. Had the internet encouraged an existing fixation or perhaps satisfied an urge for a while? We’ll never know, but it certainly didn’t create his desires. Nevertheless, the Bill was passed and huge amounts of content became illegal. So if pro-anorexia sites and content really are a genuine, proven danger, then presumably the government could outlaw them, and free speech be damned. They have form in this area.

A cynic might think that keeping content like that on the right side of the law is part of a deliberate move to establish the idea of ‘legal but harmful’ as a concept that can become law. Remember, we’re not talking about cigarettes or alcohol or anything that people physically do to themselves here. We’re talking about ideas, ideas that are not actually illegal in themselves – not terrorist propaganda or instructional material in bombmaking or pro-child abuse screeds or even libellous content. It’s not even porn, which is dealt with in a different part of the Bill that resurrects the porn block/age verification ideas that were previously dropped because they wouldn’t work, and still won’t. No, these are ideas and philosophies and beliefs that you can legally talk about in the pub and share with others online (for now).

But let’s get to the real problem here. Even if you accept that, yes, there are things that don’t perhaps justify being made illegal but which nevertheless need controlling in some way, this law is frustratingly and deliberately vague and open-ended. Who gets to decide what legal ideas are ‘harmful’? Ofcom? The government? The tabloids? We perhaps should have a list of what sort of thing is in mind here, but we won’t get that because the whole idea of ‘legal but harmful’ is that it is a clause that can and will mean whatever the people in power want it to mean at any time. It’s essentially a catch-all that can encompass any idea that someone deems to be problematic – unfashionable beliefs, difficult ideas, renegade philosophy. More pointedly, they are often criticisms of the rich and famous – from politicians to TV celebrities – that are deemed to ‘cross the line’, though no one quite seems to know where that line actually is. Many of these people seem to see any criticism or disagreement as ‘trolling’, and trolling is definitely beyond the pale. And it’s something that can be continually added to at the stroke of a pen – no more need for long-winded legislation, just get Ofcom to quietly add another bad idea to the list of the forbidden and controlled.

It’s also vague enough to ensure that the ISPs and social media platforms that will face the legal repercussions of publishing such ‘harmful’ content will become ever more cautious. If there is any doubt – and there will be a lot of doubt – it’ll be easier to block, delete and suspend because why take the risk? Sure, social media is a cess-pit of angry arguments and culture wars right now – but having a media regulator decide which ideas are allowed and which aren’t, and then expecting the platforms to police that and work out where the line is drawn between legal debate and ‘legal harm’ seems far worse.

Of course, just as the Extreme Porn laws didn’t even catch some of the sort of content that spurred the law to begin with, so we can be sure that the definition of ‘legal but harmful’ will not include whole swathes of dodgy ideas. The Wellness community and its world of bad science is unlikely to be included, for instance, and religion – not the individual fanatic, perhaps, but religious belief as a whole with all its restrictions and dictates – will also be exempt.

More to the point though, this is a rule that is designed to be impossible to follow other than by shutting up entirely. It’s aimed at silencing criticism (because who gets to decide when that spills over into ‘abuse’) and stopping anyone from rocking the boat. I’m guessing our political leaders and firebrand opinionated celebrities who can dish it but not take it will be thrilled with that – but everyone else should feel very, very concerned about where this is going.


Help support The Reprobate: