Government To Put Ofcom In Charge Of Regulating Internet Content

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More powers on the way for British communications watchdog Ofcom, after Government decides Internet firms cannot regulate themselves

The British government “is minded” to give a range of new powers to Ofcom, to protect British users from “harmful and illegal content” online.

The announcement from the Department for Digital, Culture, Media and Sport (DCMS) comes after it published its initial response to a consultation over the online harms white paper, unveiled last April.

In March 2019 some of the world’s largest tech firms had written to the British government and called for a clear recognition of the difference between illegal and harmful content.

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Online harms

The move comes after years of growing pressure. In 2017 the government demanded that social networks and ISPs remove abusive, humiliating or intimidating content.

“Digital Secretary Nicky Morgan and Home Secretary Priti Patel have announced the government is minded to appoint communications watchdog Ofcom as the regulator to enforce rules to make the internet a safer place,” said the DCMS.

Essentially, for years the government has been seeking ways to better protect children and vulnerable people online. Until now, it has largely been up to tech firms to regulate and take down what is deemed to be harmful content.

Last year the UK Parliament’s Science and Technology Committee warned social media firms that they should have a legal “duty of care” to children.

Cases such as 14-year-old Molly Russell, who took her own life after viewing self-harm images on Instagram, have only furthered lawmaker concerns about online content.

New powers

But the government feels that Ofcom will be better suited to play a key role in enforcing a statutory duty of care to protect users from harmful and illegal terrorist and child abuse content.

To this end, Ofcom will get new powers to ensure “online companies have the systems and processes in place to fulfil the duty of care to keep people using their platforms safe.”

“With Ofcom at the helm of a proportionate and strong regulatory regime, we have an incredible opportunity to lead the world in building a thriving digital economy, driven by groundbreaking technology, that is trusted by and protects everyone in the UK,” said DCMS Secretary of State Nicky Morgan.

“We will give the regulator the powers it needs to lead the fight for an internet that remains vibrant and open but with the protections, accountability and transparency people deserve,” said Morgan.

“It is incumbent on tech firms to balance issues of privacy and technological advances with child protection,” said Home Secretary Priti Patel. “That’s why it is right that we have a strong regulator to ensure social media firms fulfil their vital responsibility to vulnerable users.”

The government said it “is minded to legislate to appoint Ofcom and believes that with its experience of overseeing the broadcasting and telecoms sectors, it has the expertise and independence needed to take on the challenge of regulating online harms.”

The regulator will hold companies to account if they do not tackle internet harms such as child sexual exploitation and abuse and terrorism.

The next step will see the government publish a full consultation response in Spring 2020.

Content publishers?

The government decision drew immediate reaction from legal and tech experts.

“Historically, the debate around social media regulation has focused on whether platforms are ‘publishers’ of the content they host,” explained Ben Packer, a lawyer at Linklaters. “Today’s proposals continue the direction of travel set out in last year’s Online Harms White Paper: moving away from the ill-fitting ‘publisher’ model and instead focusing on making platforms responsible for the systems they have to deal with harmful content.”

“Across the world, online harms are governed by a patchwork of laws and regulations covering specific types of content,” said Packer. “Though the proposals are still in development, it is clear that the Government is committed to implementing one of the most ambitious regulatory frameworks yet, which will have a significant impact on tech firms with UK users.”

“One area the industry will monitor closely in the coming months is how the Government’s proposals on senior management liability will develop,” added Packer. “If these proposals are included in the final regulatory framework, firms within the scope of the regime will need to consider how best to comply. Not only will firms need to identify who will take responsibility for preventing online harms, but they will also need to put in place structures to help managers achieve this.”

“This will mean ensuring the manager has oversight of key decisions that could affect the platform’s susceptibility to online harms, plus keeping audit trails of how decisions were made,” said Packer. “This will require a significant step change in both the set-up and culture of many firms that have typically valued agility and flexibility in their business model.”

Another expert questioned what level of financial penalties firms who break the new rules could face, and whether Ofcom will be furnished with a prosecutions team for rule breakers.

“The government has announced plans to make Ofcom responsible for policing social media for harmful content rather than setting up a new regulator for the internet,” said Toni Vitale, partner and head of data protection at JMW Solicitors. “The details of exactly what powers and sanctions Ofcom will have remain unclear but children’s charity the NSPCC has called for GDPR level fines together with criminal sanctions.”

“Their data shows that over 90 cyber-crimes are committed against children everyday so the need for action is undoubtedly urgent,” said Vitale. “That could mean companies such as Facebook with an $18bn turnover facing fines of over $700m but also the prospect of the company and individual directors facing criminal prosecutions and imprisonment. This would be a cultural shift for Ofcom. Whereas the data regulator the ICO has its own prosecutions team, Ofcom does not.”

“The ICO has long campaigned for stronger criminal sanctions for data breaches including the power to impose prison sentences but so far the government has resisted,” said Vitale. “The new online harms regime may be the start of a new era with directors of largely US west coast based multinationals (often thought to be beyond the reach of national governments) facing the prospect of imprisonment if their companies fail to adhere to their duty of care to protect children online.”

Ofcom’s new role in protecting children was also welcomed by another expert.

“Ofcom’s new role as Britain’s first internet watchdog is certainly a step in the right direction, but greater measures are needed to truly protect young users online,” said David Orme, senior VP of IDEX Biometrics ASA.

“Today, children have unprecedented access to potentially harmful and age-restricted content such as gaming, gambling, social media and adult sites,” said Orme. “IDEX Biometrics’ latest research found those in Generation Z were just 14 years old on average when they first viewed adult content online in the UK, leaving 10 percent traumatised by what they saw.”

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