Will 2020 Be the Year Regulation Catches Up With Social Media?

Just after Christmas, The Times ran a front page story on online harms regulation: “Tech bosses face court if they fail to protect users”. Beneath the attention-grabbling headline was a restatement of the intent set out by the UK Government in its April 2019 Online Harms White Paper. Since then, Brexit upheaval, a change in Prime Minister, a General Election and a new Government had prevented any further progress. So, the topical “news” element of the story was that a White Paper response would emerge “in the next month”, along with a signal that OFCOM would be appointed as regulator for the new duty of care regime.

But, until the Government brings forward legislation, we are no further forward than when it first sought views in its Internet Safety Strategy Green Paper in October 2017. The Queen’s Speech in December committed only to “develop” – not introduce – legislation. There is no oven-ready Bill on the stocks. There are still plenty of things to divert Ministerial attention and Parliamentary time.

Yet there is significant cross-party consensus on the need for action on online harms and a groundswell of support for the duty of care model from Parliamentary committees and campaigners. To keep minds focused on this, Carnegie UK Trust recently published a draft Online Harm Reduction Bill which demonstrates how to implement a statutory duty of care. The draft Bill translates the comprehensive proposals developed by Professor Lorna Woods, William Perrin and myself over the past 18 months into a short, focused piece of legislation which sets out: a definition of a duty of care; who the duty applies to and risk management steps that a company should take; and tasks the appointed regulator (OFCOM) to work with industry, civil society, other regulators, the Secretary of State, and victims of harm in drawing up codes of practice.

In an accompanying letter to the returning DCMS Secretary of State, we set out how we see the duty of care as an integral part of a number of legislative and policy initiatives in train in the UK, including the Age-Appropriate Design Code, recommendations arising from the Furman review of digital competition and reviews by the Information Commissioner’s Office and the Competition and Markets Authority of digital advertising markets. We will continue to work with policymakers to make the case for regulatory action on all the systemic, operational and design components of online services that contribute to harms to their users.

In the meantime, we hope we can also deliver some action too. This month, with our support, Lord McNally will introduce a paving Bill into the House of Lords which will require the Government to appoint OFCOM as the Interim Regulator with a duty to prepare for a new duty of care regime and to start the consultative process of drawing up codes of practice to implement it. This is the quickest, most effective way for Parliamentary engagement on the purpose and design of regulation to start.

The duty of care proposal is not without its critics. There are legitimate concerns as to how to balance freedom of speech with other rights (Professor Woods’ recent paper on this is an important contribution to this debate.) The tech industry will lobby hard to delay or derail. But with a clear Government commitment and now an identified regulator, there is no reason not to get on with the next stage of debate, in Parliament – and to do it now.