Last week, the UK Home Secretary unveiled tough new plans to regulate social media platforms in the White Paper ‘Online Harms’ (the Paper). The Paper sets out a regulatory framework to tackle illegal and harmful online activity, in a flagship move which will require careful attention from social media platforms operating in the UK.

The Paper is a product of the Government’s ambition to develop a regulatory landscape which has its stated aim for “the UK to be the safest place in the world to go online, and the best place to start and grow a digital business.”

The current framework

Under the E-Commerce Directive, social media platforms are liable for any illegal content they ‘host’, which they have actual knowledge of, or have constructive knowledge of and have failed to act ‘expeditiously’ to remove. Content that is legal, but harmful, is self-regulated by each individual social media platform.

The proposed framework

Social media platforms will have a new statutory duty of care towards their users. They will need to comply with guidance set out in a proposed “code of best practice” to appropriately tackle harm caused by content or activity on their services. An independent regulator will oversee and enforce compliance with the code of practice. Its enforcement powers include substantial fines and notices, and may extend to the ISP blocking of non-compliant websites and a senior management liability regime.

The parameters of the new regime have not been established, and the Government has invited consultation until 1 July 2019 on certain issues, such as:

  • the ability of designated bodies to bring “super complaints” to the regulator;
  • the extent of the enforcement powers of the regulator; and
  • the nature of the regulator itself.

Considerations for social media companies

The proposed regime is extremely high level and much needs clarifying. Two issues of note which will likely be addressed are the following:

  • Ambiguity of “online harms”

The Paper defines “online harms” extremely broadly. It covers both “harms” which are currently illegal, such as the dissemination of terrorist material or extreme pornography, and also “harms with a less clear definition”, such as disinformation or cyberbullying.

The ambiguity of this second category poses obvious issues for social media platforms who may be unsure as to whether certain activities on their site constitute an “online harm”. Concepts such as “disinformation” are also inherently unclear, and will require clarification to establish scope. Given the subjectivity of “harm”, the new duty of care is widely drawn, leaving social media platforms to calibrate their own approach to the treatment of risky, but “legal”, content.

More broadly, the regulation treats legal and illegal harms as indistinguishable. This is likely to conflate legal and social issues in a way that could be burdensome for social media platforms to manage. We expect these concepts to be clarified as the proposal is progressed.

  • Standardised approach

The scope of the legislation that the Paper proposes is vast. It applies to any website that “allows users to share or discover user-generated content, or interact with each other online”, which includes any site with a comment section, messaging service or file-hosting site, regardless of size or prominence.

This blanket approach as it stands is likely to pose issues particularly for smaller social media platforms and start-ups. Whilst the Paper acknowledges that it will focus on those social media companies that “pose the biggest and clearest risk to users”, the standardised approach to compliance could impact smaller social media platforms disproportionately compared to dominant multi-nationals. In this regard, we expect the Government will look to shield start-ups from any unintended consequences, such as stifled innovation in the tech sector.

Conclusions

There is now a consultation period ending on 1 July 2019. It will undoubtedly attract much comment from every corner of the industry and interested parties, with some asserting attacks on freedom of speech and others lobbying for even stricter controls. Interested parties need to make sure they are heard and should contribute to the debate. Find out how to do so.

Whilst the shape and scope of the proposal will change as it evolves, it is clear that a significant regulatory overhaul is on the horizon. Without a doubt, it is important for parties to keep a careful eye on developments and plan accordingly. We will be providing bulletins as issues come into focus.

 

Special thanks to Sally Hughes, a Trainee Solicitor in our London office, for her assistance in drafting this post.