The Government has signalled its approach to introducing internet censorship in a government response to consultation contributions about the Online Harms white paper. A more detailed paper will follow in the spring. The Government has outlined
onerous, vague and expensive censorship requirements on any British website that lets its users post content including speech. Any website that takes down its forums and comment sections etc will escape the nastiness of the new law.
The idea seems
to be to force all speech onto a few US and Chinese social media websites that can handle the extensive censorship requirements of the British Governments. No doubt this will give a market opportunity for the US and Chinese internet giants to start
charging for forcibly moderated and censored interaction.
The Government has more or less committed to appointing Ofcom as the state internet censor who will be able to impose massive fines on companies and their fall guy directors who allow
speech that the government doesn't like.
On a slightly more positive note the government seems to have narrowed down its censorship scope from any conceivable thing that could be considered a harm to someone somewhere into more manageable set that
can be defines as harms to children.
The introductory sections of the document read:
Executive summary
1. The Online Harms White Paper set out the intention to improve protections for users
online through the introduction of a new duty of care on companies and an independent regulator responsible for overseeing this framework. The White Paper proposed that this regulation follow a proportionate and risk-based approach, and that the duty of
care be designed to ensure that all companies have appropriate systems and processes in place to react to concerns over harmful content and improve the safety of their users - from effective complaint mechanisms to transparent decision-making over
actions taken in response to reports of harm.
2. The consultation ran from 8 April 2019 to 1 July 2019. It received over 2,400 responses ranging from companies in the technology industry including large tech giants and small and
medium sized enterprises, academics, think tanks, children's charities, rights groups, publishers, governmental organisations and individuals. In parallel to the consultation process, we have undertaken extensive engagement over the last 12 months with
representatives from industry, civil society and others. This engagement is reflected in the response.
3. This initial government response provides an overview of the consultation responses and wider engagement on the proposals in
the White Paper. It includes an in-depth breakdown of the responses to each of the 18 consultation questions asked in relation to the White Paper proposals, and an overview of the feedback in response to our engagement with stakeholders. This document
forms an iterative part of the policy development process. We are committed to taking a deliberative and open approach to ensure that we get the detail of this complex and novel policy right. While it does not provide a detailed update on all policy
proposals, it does give an indication of our direction of travel in a number of key areas raised as overarching concern across some responses.
4. In particular, while the risk-based and proportionate approach proposed by the White
Paper was positively received by those we consulted with, written responses and our engagement highlighted questions over a number of areas, including freedom of expression and the businesses in scope of the duty of care. Having carefully considered the
information gained during this process, we have made a number of developments to our policies. These are clarified in the 'Our Response' section below.
5. This consultation has been a critical part of the development of this
policy and we are grateful to those who took part. This feedback is being factored into the development of this policy, and we will continue to engage with users, industry and civil society as we continue to refine our policies ahead of publication of
the full policy response. We believe that an agile and proportionate approach to regulation, developed in collaboration with stakeholders, will strengthen a free and open internet by providing a framework that builds public trust, while encouraging
innovation and providing confidence to investors.
Our response Freedom of expression
1. The consultation responses indicated that some respondents were concerned that the proposals could impact
freedom of expression online. We recognise the critical importance of freedom of expression, both as a fundamental right in itself and as an essential enabler of the full range of other human rights protected by UK and international law. As a result, the
overarching principle of the regulation of online harms is to protect users' rights online, including the rights of children and freedom of expression. Safeguards for freedom of expression have been built in throughout the framework. Rather than
requiring the removal of specific pieces of legal content, regulation will focus on the wider systems and processes that platforms have in place to deal with online harms, while maintaining a proportionate and risk-based approach.
2. To ensure protections for freedom of expression, regulation will establish differentiated expectations on companies for illegal content and activity, versus conduct that is not illegal but has the potential to cause harm. Regulation will therefore not
force companies to remove specific pieces of legal content. The new regulatory framework will instead require companies, where relevant, to explicitly state what content and behaviour they deem to be acceptable on their sites and enforce this
consistently and transparently. All companies in scope will need to ensure a higher level of protection for children, and take reasonable steps to protect them from inappropriate or harmful content.
3. Services in scope of the
regulation will need to ensure that illegal content is removed expeditiously and that the risk of it appearing is minimised by effective systems. Reflecting the threat to national security and the physical safety of children, companies will be required
to take particularly robust action to tackle terrorist content and online child sexual exploitation and abuse.
4. Recognising concerns about freedom of expression, the regulator will not investigate or adjudicate on individual
complaints. Companies will be able to decide what type of legal content or behaviour is acceptable on their services, but must take reasonable steps to protect children from harm. They will need to set this out in clear and accessible terms and
conditions and enforce these effectively, consistently and transparently. The proposed approach will improve transparency for users about which content is and is not acceptable on different platforms, and will enhance users' ability to challenge removal
of content where this occurs.
5. Companies will be required to have effective and proportionate user redress mechanisms which will enable users to report harmful content and to challenge content takedown where necessary. This will
give users clearer, more effective and more accessible avenues to question content takedown, which is an important safeguard for the right to freedom of expression. These processes will need to be transparent, in line with terms and conditions, and
consistently applied.
Ensuring clarity for businesses
6. We recognise the need for businesses to have certainty, and will ensure that guidance is provided to help businesses understand potential
risks arising from different types of service, and the actions that businesses would need to take to comply with the duty of care as a result. We will ensure that the regulator consults with relevant stakeholders to ensure the guidance is clear and
practicable.
Businesses in scope
7. The legislation will only apply to companies that provide services or use functionality on their websites which facilitate the sharing of user generated content or
user interactions, for example through comments, forums or video sharing. Our assessment is that only a very small proportion of UK businesses (estimated to account to less than 5%) fit within that definition. To ensure clarity, guidance will be provided
by the regulator to help businesses understand whether or not the services they provide or functionality contained on their website would fall into the scope of the regulation.
8. Just because a business has a social media page
that does not bring it in scope of regulation. Equally, a business would not be brought in scope purely by providing referral or discount codes on its website to be shared with other potential customers on social media. It would be the social media
platform hosting the content that is in scope, not the business using its services to advertise or promote their company. To be in scope, a business would have to operate its own website with the functionality to enable sharing of user-generated content,
or user interactions. We will introduce this legislation proportionately, minimising the regulatory burden on small businesses. Most small businesses where there is a lower risk of harm occurring will not have to make disproportionately burdensome
changes to their service to be compliant with the proposed regulation.
9. Regulation must be proportionate and based on evidence of risk of harm and what can feasibly be expected of companies. We anticipate that the regulator
would assess the business impacts of any new requirements it introduces. Final policy positions on proportionality will, therefore, align with the evidence of risk of harm and impact to business. Business-to-business services have very limited
opportunities to prevent harm occurring to individuals and as such will be out of scope of regulation.
Identity of the regulator
11. We are minded to make Ofcom the new regulator, in preference to
giving this function to a new body or to another existing organisation. This preference is based on its organisational experience, robustness, and experience of delivering challenging, high-profile remits across a range of sectors. Ofcom is a
well-established and experienced regulator, recently assuming high profile roles such as regulation of the BBC. Ofcom's focus on the communications sector means it already has relationships with many of the major players in the online arena, and its
spectrum licensing duties mean that it is practised at dealing with large numbers of small businesses.
12. We judge that such a role is best served by an existing regulator with a proven track record of experience, expertise and
credibility. We think that the best fit for this role is Ofcom, both in terms of policy alignment and organisational experience - for instance, in their existing work, Ofcom already takes the risk-based approach that we expect the online harms regulator
will need to employ.
Transparency
13. Effective transparency reporting will help ensure that content removal is well-founded and freedom of expression is protected. In particular, increasing
transparency around the reasons behind, and prevalence of, content removal may address concerns about some companies' existing processes for removing content. Companies' existing processes have in some cases been criticised for being opaque and hard to
challenge.
14. The government is committed to ensuring that conversations about this policy are ongoing, and that stakeholders are being engaged to mitigate concerns. In order to achieve this, we have recently established a
multi-stakeholder Transparency Working Group chaired by the Minister for Digital and Broadband which includes representation from all sides of the debate, including from industry and civil society. This group will feed into the government's transparency
report, which was announced in the Online Harms White Paper and which we intend to publish in the coming months.
15. Some stakeholders expressed concerns about a potential 'one size fits all' approach to transparency, and the
material costs for companies associated with reporting. In line with the overarching principles of the regulatory framework, the reporting requirements that a company may have to comply with will also vary in proportion with the type of service that is
being provided, and the risk factors involved. To maintain a proportionate and risk-based approach, the regulator will apply minimum thresholds in determining the level of detail that an in-scope business would need to provide in its transparency
reporting, or whether it would need to produce reports at all.
Ensuring that the regulator acts proportionately
16. The consideration of freedom of expression is at the heart of our policy
development, and we will ensure that appropriate safeguards are included throughout the legislation. By taking action to address harmful online behaviours, we are confident that our approach will support more people to enjoy their right to freedom of
expression and participate in online discussions.
17. At the same time, we also remain confident that proposals will not place an undue burden on business. Companies will be expected to take reasonable and proportionate steps to
protect users. This will vary according to the organisation's associated risk, first and foremost, size and the resources available to it, as well as by the risk associated with the service provided. To ensure clarity about how the duty of care could be
fulfilled, we will ensure there is sufficient clarity in the regulation and codes of practice about the applicable expectations on business, including where businesses are exempt from certain requirements due to their size or risk.
18. This will help companies to comply with the legislation, and to feel confident that they have done so appropriately.
Enforcement
19. We recognise the importance of the
regulator having a range of enforcement powers that it uses in a fair, proportionate and transparent way. It is equally essential that company executives are sufficiently incentivised to take online safety seriously and that the regulator can take action
when they fail to do so. We are considering the responses to the consultation on senior management liability and business disruption measures and will set out our final policy position in the Spring.
Protection of children
20. Under our proposals we expect companies to use a proportionate range of tools including age assurance, and age verification technologies to prevent children from accessing age-inappropriate content and to protect them from
other harms. This would achieve our objective of protecting children from online pornography, and would also fulfil the aims of the Digital Economy Act.
