The Online Harms White Paper published at the start of the week is a mammoth 100-page read, this insight touches the edges of some of the issues the Paper raises but is just the start of a long process techUK is embarking on to work with our members and Government as part of the consultation paper.
The White Paper is a step forward in the Government’s aim to make the UK the safest place to be online and if we get it right the UK could be a world-leader in this space. But at the moment that ‘if’ is doing some incredibly heavy lifting.
The overarching approach put forward is a promising start but is awash with challenges. The Government is rightly focusing on increasing procedural accountability, rather than individual pieces of content but by choosing to swerve the hard questions when it comes to defining the harms they want to address and the trade-offs that will be involved to make this work we are left with a starting point that is vague and raises just as many questions as it answers.
All online platforms want their users to have pleasant and positive experiences, and by-and-large people do. Where things go wrong there should be a clear process to address that and companies are already working with Government, law enforcement and other stakeholders already to ensure illegal content never appears in the first place. But the White Paper moves away from tackling purely illegal content, to create a new framework for content that is deemed harmful but not illegal.
This is fraught with difficulties which are exacerbated in the White Paper which fails to offer clear definitions; brings large swathes of companies key to the success of the UK’s digital economy into scope and does not ensure that innovation and investment are protected.
Clearly defined harms:
The White Paper outlines some of the online harms they want companies to take action on, from the clearly illegal to the harmful but not illegal, but it makes little effort to define these harms.
One of the biggest challenges faced by companies is ruling this borderline content – deciding when legitimate speech veers into hate speech; when teasing becomes trolling; or whether someone is spreading disinformation or is simply misinformed. These are the decisions faced en masse by companies every single day.
It is understandable that Government want to avoid being overly-prescriptive in a world where harms change and evolve, however, it is clear definitions and guidelines that help companies act quickly and decisively and this should be bore in mind.
A Duty of Care:
Similarly, the concept of a duty of care to be placed on industry sounds deceptively straightforward but becomes vague when it comes to the details. The duty of care is grounded in the view that the online and offline worlds are comparable, and that users of online services should be treated just like visitors to public spaces. However, the proposed statutory duty of care online bears little resemblance to its offline equivalent. Offline, such a duty is restricted to objective physical harm, while online it is proposed that this capture subjective harm caused by speech, such as trolling or intimidation, which can vary for everyone.
These questions are compounded when considering the scope of companies this applies to – how would a ‘cloud hosting provider’ provide a duty of care when it does not have a view of the content it is hosting? How can a duty of care be applied to private messaging services which are encrypted? These questions remain unanswered in the White Paper.
Scope of regulation:
This unclear scope would arguably be acceptable if targeted at a small, specific set of companies, but the White Paper makes no secret of its ambition on this front, acknowledging that a “very wide range of companies of all sizes” will be captured by the new framework. This oversimplifies the task ahead.
The harms that exist on a large and small platforms will differ, just as their resources and capabilities to tackle them will. Far from tackling the “tech giants” this approach risks entrenching their position by giving those with the resources, staff and legal expertise the advantage in complying with new regulation and stifling innovation from the get-go with undue burdens and requirements.
Moreover, this White Paper must not be viewed in a vacuum. Many investors and innovators will only see the headlines coming out of the UK and they will undoubtedly have Brexit uncertainty, the Digital Services Tax and other issues on their mind when deciding where to locate or to invest. The White Paper adds to this increasingly unattractive environment.
While the proportionate approach put forward is encouraging, serious consideration should be given to limiting the scope of regulatory framework and providing reassurances to business of all types about what will be expected of them.
Impact on Fundamental Rights:
We need to be clear about what trade-offs will be created by this new framework. When it comes to complying with these new rules and following a precautionary principle, it will be users who will be impacted.
When faced with the choice between fines and possible criminal liability or removing possibly ‘infringing’ content companies will no doubt act cautiously. This will lead to wrong calls being made, just as in Germany where the NetzDG Act has led to satire material being incorrectly removed. A number of organisations have already been vocal in their concerns - Big Brother Watch, Article 19, the Open Rights Group and Index on Censorship for example signed a joint letter highlighting censorship concerns and comparing the proposals to those seen in China or Russia.
These concerns are precisely why effective oversight and governance will be critical for any regulator. With the ability to effectively outlaw types of speech online the regulator will have an unparalleled position in modern Britain. It is only right that Parliament has a central role in providing oversight of this new regime.
Parity between online and offline:
Rather than ensuring that what is unacceptable offline is unacceptable online – a principle which techUK agrees with entirely, the new framework proposed will not so much level the playing fields between the online and offline world as it will slant them in the opposite direction, creating limits on speech online that have precedence in the offline world.
The Secretary of State has been at pains to stress that “journalistic or editorial content will not be affected by the regulatory framework” but little detail has been given on how this will work in practice. How will online platforms identify legitimate journalists? Would a journalist be free to publish content online but any further discussion of it in the comments would have to be deleted? If a well-known newspaper uploads an article to an online platform where it receives complaints for offensive material does that platform have a Duty of Care to remove it?
It is important that we avoid these disparities between what is acceptable offline and online and be clear about how proposed ‘exceptions’ would work in practice.
Education and media literacy:
Education and media literacy should have been a strong pillar in any new framework – instead the White Paper presents it as an after-thought, dedicating little over ten pages (a tenth of the White Paper) to discussing this critical issue. Ten pages that predominantly only signal what is already happening. And the good news is there is already a lot going on this space. Industry has dedicated significant resource to increasing awareness of online harms and promoting safety online through funding charities such as Childnet and the NSPCC to industry led initiatives such as Internet Matters.
We must equip our young people, vulnerable adults and frankly the entire population, to be able to engage with the internet critically and safely. We would have hoped for a bolder and more radical approach from Government in this space and look forward to engaging with them further to build resilience and literacy for all.
While it is a start, if the new regulatory regime is to be truly effective at tackling online harms then significant work needs to be done to clear up uncertainties and create more precise definitions and expectations.
techUK stands ready to work with Government to help get these issues right, but whatever form the regime ultimately takes we must be clear on one thing – this is not a silver bullet. Harms will inevitably still occur online and we must take a dual track approach to equip individuals with the skills and resilience to manage when they do, as well as trying to minimise their occurrence.
The UK should be aiming to be a world-leader in this space but we should not be creating a new framework that can be copied-and-pasted to less scrupulous regimes. It needs to be a system that strikes the balance between making the UK the safest place to be online and the best place to start and scale a tech company (an ambition set out in the Government’s own Digital Charter). The hard work starts now, and the next 12 weeks of consultation will be crucial.