Regulating the Internet – the Online Harms White Paper consultation

There is no doubt that there is a need and a public desire for regulation of the internet and social media to protect the vulnerable. In April this year, the government published its Online Harms White Paper, which sets out its proposals to make the UK the safest country in the world to be online.  It’s described as “a world-leading package of online safety measures that also supports innovation and a thriving digital economy”, and its two top priorities are to tackle unlawful and unacceptable activity online, including Child Sexual Exploitation and Abuse (CSEA) online.  A consultation on the white paper is currently live, with responses due by  11.59pm on 1 July 2019.

The main proposal in the paper is the establishment of a new regulatory framework for online safety which is underpinned by a statutory duty of care to make businesses and platforms within its scope take responsibility for the safety of their users, and to tackle the harm caused by the content or activity distributed through their services. Compliance with this duty of care will be overseen and enforced by an independent regulator, which will establish codes of practice which set out how the duty of care will be fulfilled.  Code of practices are likely to set out steps businesses in scope should take to:

  • Prevent new and known CSEA content and to prevent links to content being made available to users. This is to include guidance on proactive use of technological tools where appropriate to identify, flag or block this content.
  • Proactively identify and act upon CSEA content/activity including within live streams.
  • Proactively identify suspicious accounts showing indicators of CSEA activity and ensure children are protected from them.
  • Provide effective systems for child users to report, remove and prevent further circulation of images of themselves.
  • To promptly inform law enforcement where there is information about a CSEA offence and to preserve the evidence following removal.
  • Ensure users who are affected by CSEA content/activity are directed to, and can access, adequate support.

The White Paper considers a wide range of potential enforcement options to ensure that the regulator has sufficient powers to uphold public confidence, whilst being fair and proportionate and encouraging freedom of expression. It is envisaged the regulator’s core enforcement powers will include:

  • Issuing civil fines for proved failures in clearly defined circumstances;
  • Serving notices to companies that are found to have breached standards;
  • Publishing public notices about the proven failure of a company to comply with standards.

Due to the serious nature of the harms in issue and the global nature of the internet, the government states it is likely that the new regulator will need a wider range of further enforcement powers including:

  • Disrupting business activities by preventing search results, app stores or links on social media posts from facilitating access to companies that are in breach.
  • The creation of a new liability (civil fines or extended criminal liability) for individual senior managers.
  • Internet Service Provider blocking of non-compliant websites or apps. This would only be considered as an option of last resort and deploying such an option would be a decision for the independent regulator alone.

The White Paper contains non-legislative measures to promote the teach-safety sector in the UK, as well as measures to help users manager their safety online as follows:

  • Working with leading industry bodies and other regulators to support innovation and growth in the tech-safety sector and encourage the adoption of safety technologies.
  • Working with industry and civil society to develop a “safety by design framework” to make it easier for start-ups and small businesses to embed safety principles from the outset.
  • Developing a new online media and digital literacy strategy to help empower users to manage their online safety and that of their children. The new regulator will also have the power to require companies to report on their education and awareness raising activity.

There is a fair amount of scepticism around turning the concepts of this White Paper into a working reality, particularly in light of the global nature of the internet, concerns in relation to freedom of speech and the fact that big corporates remain reluctant to spend time and money on compliance. However, given the challenges and concerns for children when using the internet set out in our blogs this week any steps towards  regulation of the internet for their sake have to be seen as positive, no matter how big or small.

Catherine Davey, Associate, BLM

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