First, it’s notable that some 2,400 responses were received to the OHWP consultation request. These came from large tech businesses, SMEs, academics, think tanks, children’s charities, rights groups, publishers, governmental organisations and individuals. It’s reassuring to know that such a number and range of responses were received. Almost 400 of the responses were from organisations, the rest being from private individuals. The volume of responses is a good illustration of the importance of the topic and should bode well for ensuring a balanced legislative approach when that time comes.
Also welcome is the confirmation that the regulator’s decisions will be subject to a statutory appeals process through the courts, in much the same way as the findings of the UK Information Commissioner’s Office are subject to appeal through the First Tier Information Rights Tribunal and Ofcom’s decisions, within its current remit, can be challenged in the Competition Appeals Tribunal. The alternative approach mooted in the OHWP was that the only mode of challenge might be judicial review. This was an unsatisfactory suggestion, given the high thresholds for successfully pursuing judicial review proceedings. The availability of an appeals procedure should give regulated entities more confidence in the regulator’s approach, knowing that it can be held to account if necessary.
Another positive point to highlight is the emphasis in the response paper on transparency. The whole area of online harms is susceptible to judgements being made based on a lack of information. Examples are in the areas of child sexual exploitation and abuse and terrorism. It would be helpful for the public to have a better idea of the lengths to which technology providers currently go in areas like these. The government has committed to producing its own transparency report in the next few months.
It’s not all good news. Prior to the publication of the OHWP last spring the idea that a ‘duty of care’ should be the new regulatory standard had gained quite a lot of traction. The Telegraph had campaigned hard for this, and the Carnegie UK Trust had championed this idea before the House of Lords Communications Committee. In the response paper there is a sense that the government may be starting to recognise problems with the idea that a duty of care should define the standard required of regulated entities.
Getting the scope clear will be one of the biggest challenges for the government as it moves towards drafting legislation. For example, take the term ‘website’. A common understanding of this term might be that it refers to “a page on the internet”. That’s a quite outdated notion. Where do apps, chat rooms and chat functionality in games fit in, for example?
Connected with this is the fundamental problem around private communications. The OHWP and the response paper both make the point that many illegal or harmful communications take place in private spaces. Most respondents to the OHWP consultation said that private communications should not be within scope of regulation at all. There is a strong sense that the government is not happy with this, but does not have a clear plan for addressing the very difficult question of how private communications could be effectively brought within scope in a way which is lawful. Our current best guess is that there may be some lighter touch regulation around providing appropriate functionality for users to protect themselves in a private environment. Clearly, though, there is a lot still to do in this area.
Much remains unclear and there is hard work to do to make progress on the more difficult aspects of the online harms agenda.
It looks almost certain that Ofcom will be appointed as the regulator for online harms. Ofcom appears to have been the clear preference among those respondents who expressed a preference, and it is understandable that the government is reluctant to establish a brand new regulatory body in circumstances where the regulator’s task will not be straightforward. What is unclear, however, is just how effective Ofcom will be. It will be tempting for Ofcom to play to its strengths and to shape its role based on the strategies and tactics which it has learned from its current remit, especially in the context of broadcasting. That will only work to some extent, though, and Ofcom is likely to need to bring in new expertise and skills, particularly on the technology side, if it is to have credibility in its role.
The possibility of directors being held personally responsible for corporate failures to meet regulatory requirements was raised in the OHWP. The response paper is relatively light-touch on this, and states that responses are still under consideration and that the government will set out its policy position in the spring. A very careful approach will be needed here. Existing regimes involving personal responsibility of directors are generally based on the director having some involvement in the wrongdoing. It is not clear how this standard approach can or will be adopted in the context of online harms. With so much to grapple with already, it may be better to leave this challenge to one side for now, and to return to it later if the regulatory regime proves ineffective for whatever reason.
The most striking example of that type of thinking in the original OHWP was the example of content illegally uploaded from prisons – search for “Box 3” in the OHWP. Quite how this made it into the published version is baffling. The root of this problem is in prison perimeter security, or the lack of it, which means that devices are easily smuggled in. To blame big tech for this is far wide of the mark. In the response paper there is a more pragmatic and informed approach, no doubt as a result of the detailed consultation process. The response paper represents a positive step forward on a number of fronts, but still leaves a great deal of hard work to do, and the government will continue to need much support from external stakeholders.
Timings for legislation are unclear, but there are a number of interim steps which might continue to inform policy development. In addition to its own transparency report which is expected in the next few months, the government also plans to introduce interim codes of practice in some areas.
David Barker is a Partner at Pinsent Masons and leads their TMT Disputes Team
This post originally appeared on the Pinsent Masons Out-Law site and is reproduced with permission and thanks