Online harm, free speech, and the ‘legal but harmful’ debate: an interest-based approach

The Online Safety Act introduced to public and academic debate the concept of harmful but legal online content. The idea that non-wrongful speech ought to be regulated in certain circumstances, is prima facie controversial, as it appears to be incompatible with the Harm Principle, which remains one of the most common considerations for legislators in liberal democracies. Most arguments against this provision have focused on the right of speakers to express themselves freely provided that they do not wrongfully harm others. This paper argues that, while some of these concerns for the rights of speakers are legitimate, it is listeners who would see their right to free speech mostly affected by the regulation of legal but harmful online speech, due to its distinct paternalistic implications. While the idea behind the provision is justifiable, the means employed and the persons or organisations entrusted with the task are crucial from a normative standpoint.