The government’s attempts to regulate the internet – fit for purpose?

By Dr Edina Harbinja, Senior Lecturer in Media/Privacy Law, April 2019

Are the laws that currently govern the internet adequate and desirable? Do we want governments to take a more proactive role and regulate more heavily, for example, introducing laws that prohibit trolling, intimidation, fake news or glamorising gang lifestyle?

Alternatively, are these issues better dealt with by companies such as Facebook and Google and their community standards, which include reporting and removal of user content such as pictures of social media comments? Perhaps some of us would prefer a combination of these or no regulation at all.

With these challenges in mind, the UK has undertaken the ambitious task of leading international efforts to introduce new internet regulations,  which were  clearly stated in the government's Online Harms White Paper. It follows the government’s position as highlighted in the Internet Safety Strategy Green Paper (October 2017) and the Digital Charter (January 2018).

Some of the key principles outlined in the paper include parity, meaning what is ‘unacceptable offline should be unacceptable online’. As well as openness, transparency, the protection of human rights and the protection of children. It follows the House of Commons Digital, Culture, Media and Sport Committee report: Disinformation and Fake News, which called for government action to curtail the spread of fake news.

What are the current threats?
The government is yet to respond to the report in detail, however fake news or disinformation is within the remit of ‘harms’ that the White Paper targets for regulation. These reports and papers should be read in conjunction with the House of Lords Communications Committee Report. Taken together, government and parliament agree that the internet, social media in particular, need to be regulated more extensively.

Beyond fake news, policymakers have identified numerous challenges and threats online. These include the Cambridge Analytica scandal, issues with political advertising, online manipulation, and en mass data breaches by global tech giants. Others include a lack of competition among mainstream internet companies, particularly with social networking, search engines and advertising. Threats like child abuse, other harms to children, terrorist/extremist content and knife crime are also now a big concern.

A new regulator for the internet (OfWeb)
The White Paper calls for a new independent regulator for the internet (OfWeb) or in the first instance to task Ofcom to introduce a co-regulatory model similar to broadcast regulation. The regulator would draft codes of conduct setting out principles of online safety, imposing a duty of care on platforms, backed up by reporting requirements and effective enforcement powers.

While this sort of regulation has been welcomed by key industry players, such as Facebook CEO, Mark Zuckerberg, there are some serious concerns that government and parliament need to address before they adopt any regulatory framework for the internet.

Ensuring freedom of expression
These concerns include the effects new regulation may have on freedom of expression. One of the key challenges is the vague and undefined nature of the many so-called ‘harms’ that the government proposes to regulate. While some of these  are already regulated and illegal, such as terrorist related content, content related to child abuse, extreme pornography and so forth, a lot of the harms that the White Paper identifies are classed as ‘legal harms’. For example, disinformation, trolling or intimidation could amount to protected speech under Article 10 of the European Convention of Human Rights (the right to freedom of expression).

Furthermore, the vague nature of harms as a group that is not illegal per se could be questioned under principles of rule of law, proportionality and legal certainty. It is therefore crucial to take into account warnings by civil society and academics about the impact the Paper’s proposals might have on freedom of expression, in order to avoid challenges under the Convention.  

What about duty of care?
The second challenge is the imposition of a duty of care to users on internet companies. In short the duty means that companies should keep their users safe and protect them from illegal and harmful content. But in the context of online harms, duty of care is contrary to long established legal principles from the law of negligence and liability. For example, traditional duty of care relates to injury to a person or their property. It does not normally cover undefined harms to groups or society, as would be the case on the internet if the government’s proposal were adopted.

Confusion over intermediary liability
There is some degree of confusion about a concept known as intermediary liability, which was established in 2000 in the European Union’s E-commerce Directive. Generally, the Directive provides safe harbour for internet ‘hosts’. Most of the companies the government aims to regulate would fit into this category and protection from liability for illegal content is stored on their platforms. This is provided they do not have actual knowledge about the content and act quickly upon obtaining knowledge.

In addition, the Directive prohibits the general monitoring of internet users for the purpose of detecting such content. There is extensive CJEU case law on the matter, as well as  related ECtHR jurisprudence on Articles 8 and 10 of the ECHR and the liability of internet platforms. However, in its report the House of Lords deems this legislation out of date (para 193), but the government claims  the new regime would be compatible with the Directive (para 41).

This is highly disputable for the following reasons:

  • the vague nature of online harms
  • the likely need for general monitoring of users in order to comply with the duty of care obligation
  • the potential need for a social media ID, so that companies can verify the age of their users and tailor their content/access to their services accordingly.

The UK’s ambitious aim of ‘leading international efforts by setting a coherent, proportionate and effective approach that reflects our commitment to free, open and secure internet’ is very commendable. But in order to achieve this aim, policymakers need to address key concerns and translate this commitment into a specific regulatory design very carefully.

The first step would be to consider all the views expressed in submissions to the ongoing consultations initiated by the White Paper, in accordance with the guiding principles and more importantly the European Convention of Human Rights.