The Government is now considering responses to its consultation on the Online Harms White Paper. Published in April, the White Paper represents a bold statement of intent to place the UK at the forefront of regulation of the online world, in contrast to the US's hands-off approach and the European Commission's 'wait and see' attitude. The White Paper proposes that a statutory duty of care is placed on companies that allow users to share or discover user-generated content or interact with each other online and that this will be enforced by a regulator with the power to impose substantial fines and disrupt business activities.
Companies have expressed concern that the resulting legislation could lead to unintended consequences such as a paradigm in which conduct that is legal offline may be illegal online or an environment in which innovation is dampened. They have pointed to the criticism of the legislation passed in Australia (very quickly) following the Christchurch terrorist attack, including that it is knee-jerk legislation responding to a 'tech-lash' that may have a chilling effect on freedom of expression.
When the Government responds to the consultation in the coming months, stakeholders will expect clarity on issues including:
- which companies are within the scope of the duty of care and how the regime will be risk-based and proportionate. For example, retail businesses with websites on which customers post reviews may be concerned about the regulatory burden to which they will be subject when arguably harm is more likely to arise from the major platforms;
- a clear articulation of the 'harms' in scope and in particular, the 'harms with a less clear definition'. For example, without further explanation, the industry concern is that the regime will place the onus on individual businesses to determine what amounts to bullying;
- how 'disinformation' could be regulated in a proportionate manner that does not infringe on principles of freedom of expression;
- the addition of other 'harms' such as economic crime (online fraud) and lack of transparency over the use of data which are attracting press attention and public concern;
- the practicality of the proposals including companies operating under numerous Codes of Conduct and being required to carry out some pro-active monitoring (with the associated strain on employees, cost and AI challenges) and the technical feasibility of a regulator 'disrupting business activities';
- whether the regulator drafting the Codes of Conduct is appropriate and generally how the regulator will be scrutinised to ensure the proportionality of its approach; and
- the importance of education and promoting digital literacy amongst adults as well as young people. Various stakeholders in the industry believe that a key part of changing behaviour online is education and re-building trust.
Other proposals for regulating Big Tech have been published recently including the CMA's 'Digital markets strategy' and its market study into digital advertising. Careful thought will need to be given to how the Online Harms proposals interplay with the CMA's agenda to tackle consumer harm caused by monopoly tech companies.
If you would like to discuss how the proposals are likely to affect your business, please contact Louise Sivey, John Cassels or Matthew Lohn.
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