The UK Government Department for Culture, Media and Sports (DCMS) has today published its initial response to the public consultation on the Online Harms White Paper, published in April 2019. In its response, DCMS gives an indication of how it plans to adapt the proposed regulatory framework to take account of some of the concerns raised by industry stakeholders, including the fact that is it minded to make Ofcom the new regulator and that Ofcom will be providing guidance on the companies in scope.
The Online Harms White Paper, published in April 2019, set out proposals by DCMS for tackling online harms and included consultation questions on the proposed new regulatory framework. Key aspects of the proposals include the introduction of a statutory duty of care on companies whose services allow users to share user-generated content or interact and the establishment of a new regulator to enforce the new framework, with the power to impose fines. The government’s response to the consultation provides an indication of how it intends to deal with some of the concerns raised as part of the consultation process, pending the publication of a full response in the Spring.
Freedom of Expression
To deal with concerns relating to the impact on freedom of expression, the Government has said that, rather than forcing companies to remove specific items of content, companies will need to state what content and behaviour is acceptable on their sites in their terms and conditions and enforce these terms. Companies will need to have effective user redress mechanisms to allow users to report harmful content and challenge content takedown.
Businesses in Scope
The response states that the new 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 e.g. through forums or video sharing. However, it says guidance will be provided by the regulator to help businesses understand if they are in scope.
Identity of the Regulator
The Government says it is minded to make Ofcom the regulator rather than create a new body or give the function to another existing organisation.
Transparency
In response to concerns about the burden and costs of reporting, the government says increasing transparency around companies’ processes for removing content is important. However, the reporting requirements will vary in proportion with the type of service. The regulator will apply minimum thresholds for the level of detail a company needs to include in a transparency report.
Proportionality
The response states that the new regime will be proportionate in its application. However, it remains unclear whether proportionality will be introduced only through the regulator’s approach to enforcement (i.e. the obligations in the legislation and codes of practice will be broadly framed but the regulator will enforce those obligations in a targeted and risk-based manner.) This approach could result in significant uncertainty through companies that are not intended to be the targets of the regime being in breach of the obligations and reliant on an implicit assurance that they will not be subject to enforcement action.
Next steps
The government has said it will publish a full response to the consultation in Spring 2020. In the meantime, it is introducing non-legislative measures, including interim voluntary codes of practice for companies on how to tackle online terrorist and child-abuse content; the publication of a government transparency report (with input from a multi-stakeholder transparency working group) and a media literacy strategy for the education of children and young adults (and their carers), to help them manage their own online safety.
How we can help
Hogan Lovells is closely following the UK government’s proposals. We will be publishing a more detailed analysis of the government’s proposed regulatory framework for tackling online harms in the coming weeks. There is also an opportunity over the next few months for companies to lobby the government in relation to its proposals.
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