The UK government has published its initial response to last year’s consultation on the Online Harms White Paper. 2,400 responses were received and the initial thinking is that Ofcom should be appointed as the responsible regulator to deal with online harms. There will be a further consultation on what powers it will have and it is likely that there will be some overlap with the ICO. Currently there is no indication of the sanctions Ofcom would potentially have.
The aim is to protect children and vulnerable people online and to give consumers greater confidence to use technology. In addition, the government seeks to provide the certainty technology businesses need to flourish and innovate while creating a fair and proportionate regulatory environment.
Ofcom will play a key role in enforcing a statutory duty of care to protect users from harmful and illegal terrorist and child abuse content. The government says that it will be a step towards achieving its pledge to make the UK the safest place in the world to be online.
Ofcom will have new powers to carry out its extended responsibilities. This will include making sure online companies have the systems and processes in place to fulfil the new statutory duty of care to keep people using their platforms safe.
The government has set out how different approaches to legal and illegal content will be taken and freedom of speech will be protected, as well as the businesses that are likely to be in scope.
The government intends 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. It hopes that the regulator will hold companies to account if they do not tackle internet harms such as child sexual exploitation and abuse and terrorism.
The initial response also sets out decisions the government has taken on a number of other proposals put forward in the Online Harms White Paper:
Platforms will need to ensure that illegal content is removed quickly and minimise the risk of it appearing, with robust action on terrorist content and online child sexual abuse.
The government will ensure Ofcom has a clear responsibility to protect users’ rights online. This will include paying due regard to safeguarding free speech, defending the role of the press, promoting tech innovation and ensuring businesses do not face disproportionate burdens.
To protect freedom of expression, the regulations will not stop adults from accessing or posting legal content that some may find offensive. Instead companies will be required to explicitly state what content and behaviour is acceptable on their sites in clear and accessible terms and conditions and enforce these effectively, consistently and transparently.
The regulation will only apply to companies that allow the sharing of user-generated content – for example, through comments, forums or video sharing. Fewer than five per cent of UK businesses will be in scope.
Ofcom will provide guidance to help businesses understand whether the services they provide would fall into the scope of the regulation. Business-to-business services which pose a low risk to the general public will not be in scope. If a business merely has a social media presence, that will not necessarily mean it will be in scope.
The government will set the direction through legislation, but decisions on processes and procedures will be taken by Ofcom. This will mean regulation is flexible and can adapt to the rapid emergence of new harms and technologies. It will be up to Ofcom to monitor new and emerging online dangers and take appropriate enforcement action.
The government will publish a full consultation response in Spring 2020. This will set out further details of the potential enforcement powers Ofcom may have. The government says that it will carefully consider the full effects of its suggested changes both for Ofcom and to inform broader work on the regulatory landscape. In the meantime, the government is considering other measures such as interim codes of practice s to tackle the more serious harms “where there is a risk to national security or to the safety of children” and will publish a transparency report.
