On 12 February 2020, Baroness Morgan, Culture Secretary, and Priti Patel, Home Secretary, announced British government proposals to enable Ofcom, the independent communications regulator, to extend its regulatory remit to the control of online, potentially “harmful”, content. These proposals, aimed at protecting users from both physical and psychological harm, are welcome, and the UK is seen as a result to be leading the way with its attempts to sanitise the Internet. As usual, it is worth looking at the players involved, and then reflecting on what is potentially achievable.
Ofcom, or the Office of Communications, was set up as a result of the Office of Communications Act 2002. This new body replaced five separate regulatory agencies with a single new over-arching entity. Ofcom was provided with statutory powers to oversee all broadcasting (radio and television), telecommunications (fixed land-line and mobile phones), broadband and postal communications in the UK. As part of its statutory duties, Ofcom is obliged to provide Parliament with annual reports on the state of play in the world of British communications.
The new proposals are primarily directed at companies that host and share user-generated online content, such as Google, Facebook, Twitter, Snapchat, and YouTube. It is widely accepted that self-regulation of online content, in the form of written comments, online forums and uploaded videos, has frequently been ineffective- often both too late and too little. Specific concerns relate to the incitement of racial hatred and violence, the dissemination of terrorist propaganda, the facilitation of paedophilia and other forms of child abuse, and the encouragement of cyber-bullying. The tragic case of a 14-year-old schoolgirl, Molly Russell, who took her own life after viewing troubling content about self-harm and suicide on Instagram in 2017, is often cited as an example of the malign influence of the Internet on mental health and well- being, one that is in urgent need of some form of control.
The proposals, originating from the Department of Culture, Media and Sport and the Home Office, emerged in response to a public consultation that followed publication of the government’s Online Harms White Paper in April 2019. The UK has thereby positioned itself as the first country in the world to attempt to set out a regulatory framework, one that is supposedly “coherent, proportionate and effective”. At the same time, a “free, open and safe internet” is still guaranteed, thus protecting freedom of speech. This approach radically differs from the censorship of the Internet in totalitarian countries such as China, Cuba, Iran, North Korea and Saudi Arabia, where websites, email accounts, blog posts, social media activity and other web-based communications are often blocked in the interests of “national security” and political stability.
So, what exactly is being proposed, and who will be affected? The new British regulatory framework will apply to social media platforms, file hosting sites, public discussion forums, messaging services and search engines. The regulations are primarily aimed at restricting both the posting as well as the distribution of potentially “harmful” online content. However, willing and presumably “invulnerable adults” may still be able to access or post offensive content , provided that the content meets the standards of the internet company being used for the purpose.
The proposals, as outlined, seem to lack teeth. The government will not be empowered to actually remove undesirable posts from social media platforms. It will rely instead on the timely actions of Internet companies, who will set their own standards of acceptable content and behaviour and then incorporate these into their terms of service. These companies will be expected to produce annual transparency reports, outlining their compliance with best practice. The government can fine recalcitrant offenders and, at most, impose prison sentences, where this is felt to be proportionate to any crimes that may have been committed. How these sanctions can meaningfully affect hugely wealthy and immensely powerful global internet companies remains to be seen. What appears at face value to be a worthy idea actually faces many potential obstacles. In an ever-expanding digital world, with an all-pervasive “dark web”, immense challenges lie ahead, in what is largely uncharted territory. Flexibility and adaptability will be required at all times, as a bare minimum. In the meantime, just watch this space as the situation unfolds.
Ashis Banerjee