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What is unacceptable offline should be unacceptable online

Should the web be regulated?

11 February 2019

The Government considers whether online platforms which mediate individuals' use of the internet have adequate governance, and whether a new legal framework is now desirable to increase public confidence and enable the digital economy to thrive.

In 2018, the House of Lords Select Committee on Communications opened an enquiry to investigate how regulation of the internet could be improved. Information was gathered through witness statements provided by dominating online platforms and various research groups. This article analyses the trends emerging from these statements.

Policing the web

Minister for Digital and the Creative Industry, Margot James, highlighted the difficulty with regulating the 'moving target' that is the internet. Issues around balancing regulation and transparency with innovation and free speech also cause delays in getting solutions through Parliament. The combination of these unique challenges has resulted in a gap in the regulatory framework which allows swathes of online activity to take place with very light-touch controls. In addressing this, the Government will need to decide whether to regulate newly emerging behaviours or regulate the technology enabling this.

It is widely accepted that greater standards of corporate responsibility need to be set to ensure that unlawful acts committed on online platforms are dealt with in a quick, effective and transparent way. The Information Commissioner noted that “Whilst voluntary initiatives by the social media platforms are welcome, a self-regulatory approach will not guarantee consistency, rigour or … public confidence”.

Some of the initiatives proposed by the Government are, a revised code of practice, quarterly reporting requirements, and educational programs to allow people to play a greater role in protecting their own online security. Another desirable suggestion is the creation of a horizon scanning body that advises the Government on problems surfacing in various industries. This body would act as an independent forum which identifies potential issues and enables Government to take pre-emptive action to prevent problems rather than remedial action later.

At present, platforms become liable if they fail to take action once they know of the existence of illegal content. The Minister argues that companies should also be encouraged to create algorithms that draw illegal content to the attention of platforms.

What are the 'tech giants' saying?

The power that digital platforms hold creates both angst and opportunity for the Government.  While concern exists around the harm to democracy and social welfare that a few large tech companies dominating the market can cause, a safer internet will only be achieved with the cooperation of such companies.

It is evident through the statements from organisations active online such as Google, Amazon, Facebook, Microsoft and ITV, that efforts to make the online world safer are wholly supported, and internet platforms welcome a collaborative system of co-regulation with the Government. The question is not whether to regulate, but how.

Most platforms seem open to the idea of an independent or horizon scanning body to establish principles and mechanisms which are flexible enough for rapid developments in both technical abilities and public expectations. Their concern is that policies are proportionate as over-regulating may cause unintended harm.

'Internet regulation' that clarifies existing regulations such as competition, privacy, defamation or electoral regulation can enable us to know know where exactly the lines exist between, for example, free expression and safety. Then, softer measures such as revised codes of practice, enforced standards of reporting and better technological ethics could be implemented. With oversight from independent focus groups, this appears to be the optimal starting point for a safer internet. Internet platforms and digital enterprises will then need to ensure that they are both aware of and abiding with these softer regulations.

This article was written by Nicole Kidney, Trainee Solicitor