Online harms White Paper proposes statutory duty of care

Last month the Government published a significant and ambitious White Paper to set out a proposed new regulatory framework for what are described as ‘on-line harms’. A long list is included of such harms which are considered to have a clear definition:

• child sexual exploitation and abuse
• terrorist content and activity
• organised immigration crime
• modern slavery
• extreme pornography
• revenge pornography
• harassment and cyberstalking
• hate crime
• encouraging or assisting suicide
• incitement of violence
• sale of illegal goods / services, such as drugs and weapons (on the open internet)
• content illegally uploaded from prisons
• sexting of indecent images by under 18s (creating, possessing, copying or distributing indecent or sexual images of children and young people under the age of 18).

There are a number of other harms identified which have a less clear definition:

• cyberbullying and trolling
• extremist content and activity
• coercive behaviour
• intimidation
• disinformation
• violent content
• advocacy of self-harm
• promotion of Female Genital Mutilation (FGM)

The White Paper also notes the harm caused to those who are underage of access to pornography and other inappropriate material. In this area, the Information Commissioner has now published a draft Code of Practice for consultation on “Age appropriate design” for online services.

The Government’s vision in the White Paper is 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 core problem addressed by the White Paper is “the prevalence of illegal and harmful content online and the level of public concern about online harms”. The White Paper comes hot on the heels of the terrorist attack on a mosque in New Zealand on 15 March 2019 where footage of the attack was widely circulated on social media.

At the heart of the White Paper is a proposal for a new regulatory framework which would include the following key features:

• a new statutory duty of care to make organisations “take more responsibility for the safety of their users and to tackle harm caused by content or activity on their services”;
• compliance with the new duty of care to be overseen and enforced by an independent regulator;
• Codes of Practice to be developed relating to specific harms;
• a new culture of transparency, trust and accountability whereby the regulator is to have power to require annual ‘transparency reports’ outlining the measures taken by those covered by the regulatory framework to tackle the various harms;
• a significant range of penalties and enforcement powers available to the new regulator;
• encouragement to using technology as part of the solution.

Although the White Paper talks about ‘companies’ being within the scope of the new statutory duty of care and the new regulatory framework, the proposal appears to be very broad and, on the face of it, includes organisations “that allow users to share or discover user-generated content or interact with each other online.” 

The White Paper rightly notes that:

“These services are offered by a very wide range of companies of all sizes, including social media platforms, file hosting sites, public discussion forums, messaging services and search engines.”

It goes on to state in the section on “Companies in scope of the regulatory framework”:

“The scope will include companies from a range of sectors, including social media companies, public discussion forums, retailers that allow users to review products online, along with non-profit organisations, file-sharing sites and cloud hosting providers.”

The focus appears to be on the services provided, rather than on the business model or sector. Charities are expressly stated to be included in the scope of the proposed new regulatory framework.

The White Paper explicitly recognises the importance of protecting freedom of speech in the online space and also proposes that there should be a legal obligation on the regulator to have due regard to innovation.  The regulator will be required to take a proportionate, evidence-based and risk-based approach according to the severity of the harm in question.

The consultation is open until 1 July 2019 and is promoted by both the Department of Culture Media and Sport and the Home Office.