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Angela Rayner’s legs: the legal perspective

April 28, 2022
Insight
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An uproar has arisen after an anonymous Tory MP told a Mail on Sunday journalist that the short skirts of Labour’s deputy leader, Angela Rayner, were distracting Boris Johnson at Prime Minister’s Question Time.

The Speaker of the House of Commons convened a meeting with the newspaper’s editor. Critics have condemned the paper for what they regard as misogynistic reporting and creating an unfavourable climate for women in public life.

Views will differ as to whether the story served any legitimate public interest or was merely a bit of juvenile Westminster gossip. It could, however, have wider ramifications for free speech, which is a live issue currently before Parliament in the form of the Online Safety Bill.

The Bill represents the Government’s attempt to strike the right balance between freedom of expression and restrictions to safeguard the public. One of the important proposals is to impose a new legal obligation on the largest online platforms to address content that is considered harmful to adults but falls below the threshold of a criminal offence. The Government will identify these “legal but harmful” categories in secondary legislation, and take powers to add more categories in the future.

One of the important developments in the bill is to impose a new legal obligation on the largest online platforms to address content that is considered harmful to adults but falls below the threshold of a criminal offence. The Government will identify these “legal but harmful” categories in secondary legislation, and take powers to add more categories in the future.

The affected online businesses will be obliged to set out in their terms of service how they will deal with these types of legal harms and enforce the terms consistently. By defining the categories itself, the Government intends to act in the wider public interest, and not leave the matter to the discretion of individual tech giants.  Social media companies will have to say if they intend to remove, limit or allow particular types of content.  

At the same time, the Bill aims to uphold freedom of speech by restricting platforms from overzealously removing legal content on the basis that it causes offence, even if it is not prohibited by their terms and conditions.  This is an attempt to counteract “cancel culture” but the Government is walking a difficult tightrope in seeking to define and distinguish between speech that is offensive but should nevertheless be published, speech that is legal but considered to be harmful and so is subject to special rules, and speech which is illegal.

Concepts such as what is offensive or harmful can be notoriously difficult to delineate and much is in the eye of the beholder. Is there a risk that an article about Angela Rayner’s legs could be seen as sexist, misogynistic hate speech that should be banned, or is it a trivial matter and the reader should be left to decide whether to click on the story or turn to weightier topics? As the Bill progresses through Parliament, it will be interesting to see whether MPs consider that the Government is achieving a fair balance or whether there could be attempts to toughen the Bill by those politicians who have been critical of the Mail on Sunday or indeed attempts to dilute the Bill by free speech advocates who fear the increasing grip of cancel culture.    

As Elon Musk gears up to take over Twitter with a promise to make it a bastion of free public debate, the competing tensions may play out differently on the opposite sides of the Atlantic. The Online Safety Bill aims to introduce far-reaching and innovative legislation and Parliament needs to scrutinise it carefully before it is enacted and then carefully monitor its implementation in the years ahead.

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