Can the Internet be regulated? It’s a big question. And one that affects anyone who runs a business with an online presence. The government’s Online Harms White Paper, published this week, aims to tackle head-on harmful online activity. It’s a bold move. If the proposals contained in the paper become law, the UK will be one of the first countries across the globe to have introduced such comprehensive regulation of online content.
Some see the plans as a potentially unjustified infringement of the right to freedom of expression. Others believe a scheme that’s limited only to the UK will serve little purpose given the global reach of harmful online content.
At Nath Solicitors in London we believe all businesses should make themselves familiar with these proposals. While the bulk of any final regulations will apply to the big tech players like Facebook and Twitter and search engines like Google, they could represent a significant departure from the way the authorities currently approach online content. And many smaller organisations may well be caught by some of the tighter controls.
WHAT IS THE GOVERNMENT PROPOSING?
The government wants online companies to take more responsibility for the safety of the individuals who use their services. It also wants companies to be answerable for harm caused by content or activity channeled through their services. To do this it is proposing a series of measures, including:
- Creation of an independent regulator
- Imposition of a ‘digital duty of care’
- A requirement that companies produce evidence of compliance with this duty of care
- Sweeping enforcement powers of the new regulator, including large fines, imposition of personal liability of senior executives and power to disrupt the online business of offending companies
- Obligation on companies to produce reports of harmful material on their services each year. These will be available publicly to enable consumers to decide whether or not to use the particular service
WHO WILL BE REGULATED?
The rules will apply to companies that allow users to share or discover user-generated content or interact with each other online. This would seem to cover almost every service on the internet, including file services, personal blogs, and hosting platforms. It would clearly be impractical for any regulator to monitor online activity to that extent.
The government accepts that to be effective the new regulatory body will have to act proportionately, and take what it labels a ‘ risk-based approach’. In practice this should see the regulator focusing -initially at least – on companies that pose the clearest risk of harm. Risk could stem from either the size of the business or the entity’s track record in publishing harmful material. It’s worth noting that in Germany, to take an example, the Network Enforcement Act (requiring companies to remove certain harmful material within 7 days of a complaint) applies only to platforms with more than 2 million users.
Whatever the level of monitoring, it does look like even small messaging services or companies that run any user generated content at all will technically have to comply with the regulators codes of practices. This is likely to include setting up complaints handling systems and dealing with information requests from the regulator. It certainly won’t be easy for many small companies.
COMMENT
The Online Harms White Paper is only a proposal – a reflection of current government thinking. There’s no guarantee that the suggestions it contains will become law and they could change significantly from their current form. Nevertheless several aspects of the plans are noteworthy:
- The proposed sanctions available to the regulator – These range from substantial fines to ‘disruption of business activities’ and from asking third parties to remove non-compliant companies from search results to ISP blocking (preventing UK consumers from viewing a particular website).
- Senior management liability – The proposals indicate that certain individuals would be held personally liable if there is a significant breach of the new digital duty of care. The concern of many is that this could lead to a chilling effect in terms of the content companies permit on their website. An overly cautious approach to publishing online content because of the fear of civil or criminal liability could transform the very nature of the internet.
- A UK-limited regime – It’s hard to see how effective a regulatory regime that applies only to one legal jurisdiction can stem the flow of harmful online content across the globe. The government might be seeking a global coalition of countries but getting the required buy-in from other jurisdictions might not be easy. Similar proposals in the US in particular have come to nothing. And corresponding schemes in other countries like Germany and Australia are extremely limited in their application. Mark Zuckerberg of Facebook has said that a global approach is needed to ensure that “the Internet does not get fractured” and “entrepreneurs can build products that serve everyone.” How that’s achieved in practice remains to be seen.
The response so far of tech giants like Facebook and Twitter to the White Paper has been moderate. They have indicated they want to engage with the government as the new statutory regime is developed and established. As the process intensifies however it’s not hard to see some kickback, particularly in respect of the government proposals for the personal liability of senior managers that we’ve discussed.
To explore any of the issues we have raised or for commercial legal advice generally you can call us on 0203 983 8278 or contact us online.
