The U.K. government has published its long-trailed (child) \u201csafety-focused\u201d plan to regulate online content and speech.<\/p>\n
The Online Safety Bill has been in the works for years \u2014 during which time a prior plan to require age verification for accessing online porn in the U.K., also with the goal of protecting kids from being exposed to inappropriate content online but which was widely criticized as unworkable, got quietly dropped<\/a>.<\/p>\n At the time the government said it would focus on introducing comprehensive legislation to regulate a range of online harms. It can now say it\u2019s done that.<\/p>\n The 145-page Online Safety Bill can be found here<\/a> on the gov.uk website \u2014 along with 123 pages of explanatory notes and a 146-page impact assessment.<\/p>\n The draft legislation imposes a duty of care on digital service providers to moderate user-generated content in a way that prevents users from being exposed to illegal and\/or harmful stuff online.<\/p>\n The government dubs the plan globally \u201cgroundbreaking\u201d and claims it will usher in \u201ca new age of accountability for tech and bring fairness and accountability to the online world\u201d.<\/p>\n Critics warn the proposals will harm freedom of expression by encouraging platforms to over-censor, while also creating major legal and operational headaches for digital businesses that will discourage tech innovation.<\/p>\n The debate starts now in earnest.<\/p>\n The bill will be scrutinised by a joint committee of MPs \u2014 before a final version is formally introduced to Parliament for debate later this year.<\/p>\n How long it might take to hit the statute books isn\u2019t clear but the government has a large majority in parliament so, failing major public uproar and\/or mass opposition within its own ranks, the Online Safety Bill has a clear road to becoming law.<\/p>\n Commenting in a statement, digital secretary Oliver Dowden said: \u201cToday the UK shows global leadership with our groundbreaking laws to usher in a new age of accountability for tech and bring fairness and accountability to the online world.<\/p>\n \u201cWe will protect children on the internet, crack down on racist abuse on social media and through new measures to safeguard our liberties, create a truly democratic digital age.\u201d<\/p>\n The length of time it\u2019s taken for the government to draft the\u00a0Online Safety Bill<\/a> underscores the legislative challenge involved in trying to \u201cregulate the Internet\u201d.<\/p>\n In a bit of a Freudian slip, the DCMS\u2019 own PR talks about \u201cthe government\u2019s fight to make the internet safe\u201d. And there are certainly question marks over who the future winners and losers of the U.K.\u2019s Online Safety laws will be.<\/p>\n In a press release<\/a> about the plan, the Department for Digital, Media, Culture and Sport (DCMS) claimed the \u201clandmark laws\u201d will \u201ckeep children safe, stop racial hate and protect democracy online\u201d.<\/p>\n But as that grab-bag of headline goals implies, there\u2019s an awful lot going on here \u2014 and huge potential for things to go wrong if the end result is an incoherent mess of contradictory rules that make it harder for digital businesses to operate and for internet users to access the content they need.<\/p>\n The laws are set to apply widely \u2014 not just to tech giants or social media sites but to a broad swathe of websites, apps and services that host user-generated content or just allow people to talk to others online.<\/p>\n In scope, services will face a legal requirement to remove and\/or limit the spread of illegal and (in the case of larger services) harmful content, with the risk of major penalties for failing in this new duty of care toward users. There will also be requirements for reporting child sexual exploitation content to law enforcement.<\/p>\n Ofcom, the U.K.\u2019s comms regulator \u2014 which is responsible for regulating the broadcast media and telecoms sectors \u2014 is set to become the U.K. internet\u2019s content watchdog too<\/a>, under the plan.<\/p>\n It will have powers to sanction companies that fail in the new duty of care toward users by hitting them with fines of up to \u00a318 million or 10% of annual global turnover (whichever is higher).<\/p>\n The regulator will also get the power to block access to sites \u2014 so the potential for censoring entire platforms is baked in.<\/p>\n Some campaigners backing tough new internet rules have been pressing the government to include the threat of criminal sanctions for CEOs to concentrate C-suite minds on anti-harms compliance. And while ministers haven\u2019t gone that far, DCMS says a new criminal offence for senior managers has been included as a deferred power \u2014 adding: \u201cThis could be introduced at a later date if tech firms don\u2019t step up their efforts to improve safety.\u201d<\/p>\n Despite there being widespread public support in the U.K. for tougher rules for internet platforms, the devil is<\/em> the detail of how exactly you propose to do that.<\/p>\n Civil rights campaigners and tech policy experts have warned from the get-go that the government\u2019s plan risks having a chilling effect on online expression by forcing private companies to be speech police.<\/p>\n Legal experts are also warning over how workable the framework will be, given hard to define concepts like \u201charms\u201d \u2014 and, in a new addition, content that\u2019s defined as \u201cdemocratically important\u201d (which the government wants certain platforms to have a special duty to protect).<\/p>\n The clear risk is massive legal uncertainty wrapping digital businesses \u2014 with knock-on impacts on startup innovation and availability of services in the U.K.<\/p>\n ‘of ordinary sensibilities ‘ \u2013 then qualified later with group and other characteristics. dissemination, numbers etc. ‘Indirect’ harm particularly vague. Brining in some new legal standards here, surely\u2026(4\/n)<\/p>\n \u2014 Dr Edina Harbinja (@EdinaRl) May 12, 2021<\/a><\/p>\n<\/blockquote>\n\n On the #OnlineSafetyBill<\/a>, I don\u2019t see anything to suggest they\u2019ve addressed the underlying challenge: making judgment calls over difficult issues when context matters, tone matters, and when the scale is massive. It looks like a massive sledgehammer that\u2019s going to miss the nut.<\/p>\n \u2014 Paul Bernal (@PaulbernalUK) May 12, 2021<\/a><\/p>\n<\/blockquote>\n\n The bill\u2019s earlier incarnation \u2014 a <\/span>2019 White Paper<\/a> \u2014 had the word \u201charms\u201d in the title. That\u2019s been swapped for a more anodyne reference to \u201csafety\u201d but the legal uncertainty hasn\u2019t been swapped out.<\/span><\/p>\n The emphasis remains on trying to rein in an amorphous conglomerate of \u201charms\u201d \u2014 some illegal, others just unpleasant \u2014 that have been variously linked to or associated with online activity. (Often off the back of high-profile media reporting, such as into children\u2019s exposure to suicide content<\/a> on platforms like Instagram.)<\/span><\/p>\n Instagram\u2019s Adam Mosseri to meet UK health secretary over suicide content concerns<\/a><\/p>\n<\/blockquote>\n\n This can range from bullying and abuse (online trolling), to the spread of illegal content (child sexual exploitation), to content that\u2019s merely inappropriate for children to see (legal pornography).<\/p>\n Certain types of online scams (romance fraud) are another harm the government wants the legislation to address, per latest additions.<\/p>\n The umbrella \u201charms\u201d framing makes the U.K. approach distinct to the European Union\u2019s Digital Service Act<\/a> \u2014 a parallel legislative proposal to update the EU\u2019s digital rules that\u2019s more tightly focused on things that are illegal, with the bloc setting out rules to standardize reporting procedures for illegal content; and combating the risk of dangerous products being sold on e-commerce marketplaces with \u201cknow your customer\u201d requirements.<\/p>\n Understanding Europe\u2019s big push to rewrite the digital rulebook<\/a><\/p>\n<\/blockquote>\n\n In a response to criticism of the U.K. bill\u2019s potential impact on online expression, the government has added measures which it said today are aimed at strengthening people\u2019s rights to express themselves freely online.<\/p>\n It also says it\u2019s added in safeguards for journalism and to protect democratic political debate in the U.K.<\/p>\n However, its approach is already raising questions \u2014 including over what look like some pretty contradictory stipulations.<\/p>\n For example, the DCMS\u2019 discussion of how the bill will handle journalistic content confirms that content on news publishers\u2019 own websites won\u2019t be in scope of the law (reader comments on those sites are also not in scope) and that articles by \u201crecognised news publishers\u201d shared on in-scope services (such as social media sites) will be exempted from legal requirements that may otherwise apply to non journalistic content.<\/p>\n Indeed, platforms will have a legal requirement to safeguard access to journalism content. (\u201cThis means [digital platforms] will have to consider the importance of journalism when undertaking content moderation, have a fast-track appeals process for journalists\u2019 removed content, and will be held to account by Ofcom for the arbitrary removal of journalistic content,\u201d DCMS notes.)<\/p>\n However the government also specifies that \u201ccitizen journalists\u2019 content will have the same protections as professional journalists\u2019 content\u201d \u2014 so exactly where (or how) the line gets drawn between \u201crecognized\u201d news publishers (out of scope), citizen journalists (also out of scope) and just any old person blogging or posting stuff on the internet (in scope\u2026 maybe?) is going to make for compelling viewing.<\/p>\n Agog to find out if I will qualify as a citizen journalist. Is a blog and an over-active Twitter account enough, I wonder?<\/p>\n \u2014 Graham Smith (@cyberleagle) May 12, 2021<\/a><\/p>\n<\/blockquote>\n\n Carve outs to protect political speech also complicate the content moderation picture for digital services \u2014 given, for example, how extremist groups that hold racist opinions can seek to launder their hate speech and abuse as \u201cpolitical opinion\u201d. (Some notoriously racist activists also like to claim to be \u201cjournalists\u201d\u2026)<\/p>\n DCMS writes that companies will be \u201cforbidden from discriminating against particular political viewpoints and will need to apply protections equally to a range of political opinions, no matter their affiliation\u201d.<\/p>\n \u201cPolicies to protect such content will need to be set out in clear and accessible terms and conditions and firms will need to stick to them or face enforcement action from Ofcom,\u201d it goes on, adding: \u201cWhen moderating content, companies will need to take into account the political context around why the content is being shared and give it a high level of protection if it is democratically important.\u201d<\/p>\n Platforms will face responsibility for balancing all these conflicting requirements \u2014 drawing on Codes of Practice on content moderation that respects freedom of expression which will be set out by Ofcom \u2014 but also under threat of major penalties being slapped on them by Ofcom if they get it wrong.<\/p>\n Interestingly, the government appears to be looking favorably on the Facebook-devised \u201cOversight Board\u201d model<\/a>, where a panel of humans sit in judgement on \u201ccomplex\u201d content moderation cases \u2014 and also discouraging too much use of AI filters which it warns risk missing speech nuance and over-removing content. (Especially interesting given the U.K. government\u2019s prior pressure on platforms to adopt AI tools<\/a> to speed up terrorism content takedowns.)<\/p>\n \u201cThe Bill will ensure people in the UK can express themselves freely online and participate in pluralistic and robust debate,\u201d writes DCMS. \u201cAll in-scope companies will need to consider and put in place safeguards for freedom of expression when fulfilling their duties. These safeguards will be set out by Ofcom in codes of practice but, for example, might include having human moderators take decisions in complex cases where context is important.\u201d<\/p>\n \u201cPeople using their services will need to have access to effective routes of appeal for content removed without good reason and companies must reinstate that content if it has been removed unfairly. Users will also be able to appeal to Ofcom and these complaints will form an essential part of Ofcom\u2019s horizon-scanning, research and enforcement activity,\u201d it goes on.<\/p>\n \u201cCategory 1 services [the largest, most popular services] will have additional duties. They will need to conduct and publish up-to-date assessments of their impact on freedom of expression and demonstrate they have taken steps to mitigate any adverse effects. These measures remove the risk that online companies adopt restrictive measures or over-remove content in their efforts to meet their new online safety duties. An example of this could be AI moderation technologies falsely flagging innocuous content as harmful, such as satire.\u201d<\/p>\n Another confusing-looking component of the plan is that while the bill includes measures to tackle what it calls \u201cuser-generated fraud\u201d \u2014 such as posts on social media for fake investment opportunities or romance scams on dating apps \u2014 fraud that\u2019s conducted online via advertising, emails or cloned websites will not be in scope, per DCMS, as it says \u201cthe Bill focuses on harm committed through user-generated content\u201d.<\/p>\n Yet since internet users can easily and cheaply create and run online ads \u2014 as platforms like Facebook essentially offer their ad targeting tools to anyone who\u2019s willing to pay \u2014 then why carve out fraud by ads as exempt?<\/p>\n It seems a meaningless place to draw the line. Fraud where someone paid a few dollars to amplify their scam doesn\u2019t seem a less harmful class of fraud than a free Facebook post linking to the self-same crypto investment scam.<\/p>\n In short, there\u2019s a risk of arbitrary\/ill-thought through distinctions creating incoherent and confusing rules that are prone to loopholes. Which doesn\u2019t sound good for anyone\u2019s online safety.<\/p>\n In parallel, meanwhile, the government is devising an ambitious pro-competition ex ante regime to regulate tech giants<\/a> specifically. Ensuring coherence and avoiding conflicting or overlapping requirements between that framework for platform giants and these wider digital harms rules is a further challenge.<\/p>\n UK sets out safety-focused plan to regulate internet firms<\/a><\/p>\n<\/blockquote>\n\nSafety and democracy?<\/h2>\n
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