The UK government’s Online Harms White Paper, published in April 2019, outlined a regulatory framework aimed at tackling illegal and harmful content disseminated online. A public consultation in response to the White Paper ran from April until June 2019 and feedback was obtained from a variety of stakeholders likely to be affected by the regime. The government’s final response to the consultation was published in December last year in which it set out the scope of the regime in detail (for more information, please see our earlier articles in this series). Whilst the response provided useful clarity, certain elements of the regulatory framework remained uncertain. The draft Bill now provides us with further insight into how the regime may be implemented in practice.

The legislation is substantial and will require detailed consideration, but some of the initial points to note are:

Companies in Scope and Duties of Care

  • The government response confirmed that companies within the scope of the regime will have a duty of care towards users of their platform. The response also confirmed that the majority of companies within the scope of the regime will be deemed lower-risk Category 2 services, and will be required to take action against illegal content on their platforms. A smaller group of companies thought to pose a higher risk to users will be deemed Category 1 services, and these companies will also need to take action against legal but harmful content.
  • We do not have confirmation of which companies will be in each category, but the current Bill indicates that Ofcom will establish a register of these categories soon after the approved legislation comes into force.

Regulatory Powers

  • The government’s response confirmed that Ofcom would regulate the regime and set out significant enforcement powers including the right to issue fines of up to £18 million, or ten per cent of annual global turnover, whichever is higher.
  • The government also reserved the right to introduce criminal sanctions for senior managers if they failed to comply with requests from Ofcom. The Bill contains provision for this deferred power, but any decision on whether it should be incorporated will be made at least 2 years after the new regime is fully operational.
  • The government’s response indicated that Ofcom would not investigate or arbitrate individual cases but that it would consider individual experiences as part of its horizon scanning activity. The draft Bill press release references the fact that users of services will be able to appeal to Ofcom. It seems that reference to “appeal” in the press-release may be misleading – the current draft Bill does not appear to make provision for review of individual cases and accordingly it is assumed that any appeal to Ofcom will still be for the purposes of regime oversight.

Specific Harms – Fraud

  • The government response appeared to suggest that harms resulting from fraud would be outside the scope of the regime. In an unexpected change, a government press-release has now confirmed that user-generated fraud will be covered by the legislation. Examples of such activity include fake investment opportunities posted by users and so-called “romance fraud”, where a user is tricked into providing money or personal information via online dating websites and apps. Other forms of fraud such as advertising, emails or cloned websites are not proposed to be in scope.

Protection of Democracy

  • Category 1 companies will have a duty to protect content of “democratic importance”, such as content promoting or opposing government policy or a political party. These companies will be forbidden from discriminating against particular viewpoints.

Journalism and Freedom of Speech

  • Category 1 companies will have a statutory duty to safeguard UK users’ access to journalistic content shared on their platforms. Accordingly, it has been confirmed that articles by recognised news publishers shared on in-scope services should not be removed as part of a platform’s content moderation obligations.
  • The definition of “news publishers” currently appears to be drafted broadly, and it has been confirmed that citizen journalists’ content will be protected in the same way as that of professional journalists.

What’s next

The Bill must now be scrutinised by a joint committee of MPs and as a result we may still see a significant number of changes to the current draft before it is approved. Whilst we do not yet know what the final legislation will include, it does provide an indication of the direction of travel for the regime.

Please keep any eye out for future articles on this topic, where we will be considering the impact of the Bill in further detail.

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