Building on the UK white paper: How to better protect internet openness and individuals’ rights in the fight against online harms

In April 2019 the UK government unveiled plans for sweeping new laws aimed at tackling illegal and harmful content and activity online, described by the government as ‘the toughest internet laws in the world’. While the UK government’s proposal contains some interesting avenues of exploration for the next generation of European content regulation laws, it also includes several critical weaknesses and grey areas. We’ve just filed comments with the government that spell out the key areas of concern and provide recommendations on how to address them.

The UK government’s white paper responds to legitimate public policy concerns around how technology companies deal with illegal and harmful content online. We understand that in many respects the current European regulatory paradigm is not fit for purpose, and we support an exploration of what codified content ‘responsibility’ might look like in the UK and at EU-level, while ensuring strong and clear protections for individuals’ free expression and due process rights.

As we have noted previously, we believe that the white paper’s proposed regulatory architecture could have some potential. However, the UK government’s vision to put this model into practice contains serious flaws. Here are some of the changes we believe the UK government must make to its proposal to avoid the practical implementation pitfalls:

  • Clarity on definitions: The government must provide far more detail on what is meant by the terms ‘reasonableness’ and ‘proportionality’, if these are to serve as meaningful safeguards for companies and citizens. Moreover, the government must clearly define the relevant ‘online harms’ that are to be made subject to the duty of care, to ensure that companies can effectively target their trust and safety efforts.
  • A rights-protective governance model:  The regulator tasked with overseeing the duty of care must be truly co-regulatory in nature, with companies and civil society groups central to the process by which the Codes of Practice are developed. Moreover, the regulator’s mission must include a mandate to protect fundamental rights and internet openness, and it must not have power to issue content takedown orders.
  • A targeted scope: The duty of care should be limited to online services that store and publicly disseminate user-uploaded content. There should be clear exemptions for electronic communications services, internet service providers, and cloud services, whose operational and technical architecture are ill-suited and problematic for a duty of care approach.
  • Focus on practices over outcomes:  The regulator’s role should be to operationalise the duty of care with respect to companies’ practices – the steps they are taking to reduce ‘online harms’ on their service. The regulator should not have a role in assessing the legality or harm of individual pieces of content. Even the best content moderation systems can sometimes fail to identify illegal or harmful content, and so focusing exclusively on outcomes-based metrics to assess the duty of care is inappropriate.

We look forward to engaging more with the UK government as it continues its consultation on the Online Harms white paper, and hopefully the recommendations in this filing can help address some of the white paper’s critical shortcomings. As policymakers from Brussels to Delhi contemplate the next generation of online content regulations, the UK government has the opportunity to set a positive standard for the world.