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A review of the Online Harms White Paper

  • United Kingdom
  • Privacy, data protection and cybersecurity
  • Technology, Media and Telecoms

08-11-2019

In response to the surge of harmful and illegal content being spread online, the Government currently deliberates legislation for 2020 to establish a regulatory framework that will attempt to make the UK “the safest place in the world to be online, as well as the best place in the world to start and grow a digital business”1. In this article, we take a look at the key proposals set out in the Government’s primary vehicle for legislative change – the Online Harms White Paper (“White Paper”).

What is the Online Harms White Paper?

The White Paper, published by the Digital, Media, Culture and Sport Committee (“DMCSC”) and the Home Office in April 2019, sets out the Government’s plans for new legislation to tackle harmful content online by placing a new statutory duty of care on online platforms and establishing an independent regulator (“Regulator”) for enforcement and oversight. The proposed legislation will also take into consideration the public’s response following a consultation period which closed in July 2019.

The scope of the proposed regulatory framework is wide, applying to all companies (irrespective of annual revenue, headcount or business reach) that enable users to share or discover user-generated content or interact with each other online. This will include major tech companies such as Facebook and Twitter, but will also stretch to other platforms such as online blogs and search engines – and will also apply to start-ups and charities.

What are the ‘harms’ identified?

The White Paper identifies a comprehensive set of online harms, ranging from illegal activity and content to behaviours which are harmful but not necessarily illegal, including:

• child sexual exploitation abuse (CSEA)

• terrorism

• modern slavery

• hate crime

• disinformation

• cyberbullying

• trolling

Particular emphasis is placed on harms relating to CSEA and terrorism which is considered by the DMCDC and Home Office as two of the most serious online offences.

A new statutory duty of care

The new statutory duty of care demands all relevant companies take ‘reasonable steps’ to guard against the risk of harm and keep their users safe online. The duty of care will, amongst imposing other responsibilities, require companies to:

• ensure their T&Cs meet the Regulator’s standards and reflect its codes of practice

• take prompt, transparent and effective action following reports of harmful content

• support law enforcement investigations

• regularly review their compliance processes in place

Powers of the Regulator

Where a company breaches its duty of care, the Regulator shall have a variety of powers to enforce against it, including:

• imposing substantial civil fines on the company

• imposing timeframes on the company to respond and rectify the breach

• requesting information from the company to assist with investigations

Additional, more substantial powers of the Regulator are also being considered by the Government, including the ability to:

• disrupt business activities of the breaching company, such as directing third party companies to withdraw their services that may facilitate access to the breaching company (e.g. search engines and app stores)

• ISP blocking (i.e. blocking the websites or apps of infringing companies from being accessible in the UK)

• senior management liability.

Though it is possible that the Regulator could be granted these powers, it has been made clear that the Regulator’s use and enforcement of them will be ‘proportionate’ against a breaching company, taking a risk-based approach. For example, the Regulator will take into account the company’s general capacity to comply with its statutory duty, as well as the overall reach that its platform has to users. On this basis, the bigger the popularity and influence of a company’s platform, the firmer the laws will be enforced.

The Government is now in the process of deliberating how best to incorporate the White Paper’s proposals into legislation, which we expect to see in 2020.


1. https://www.gov.uk/government/consultations/online-harms-white-paper/online-harms-white-paper

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