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Ofcom Set to Become UK Regulator for Internet Censorship

Wednesday, February 12th, 2020 (11:52 am) - Score 2,522
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The UK Government has today proposed for Ofcom to take on the role of internet content regulator via a new legal “duty of care“, which would hand them the power to force company websites and social media firms into removing “harmful” content (e.g. bullying, terrorism, child abuse, self-harm and suicide imagery).

Until now most of the online world has tended to operate through a system of self-regulation, which is working but is still frequently criticised for allowing some “harmful” content through the net (it’s very difficult to get this right and adding a law won’t change that). In response the Government proposes to introduce a new law for websites, which would be enforced through a Code of Practice (CoP) via Ofcom.

At this stage the Government’s response to last year’s Online Harms White Paper is somewhat lacking in detail. For example, we note that there’s no mention of either “fake news” or “conspiracy theories” in the text, which did previously feature. Likewise there’s no solid information on enforcement, but last year’s paper did hint at the possibility of automated filtering systems and working with broadband ISPs to ban sites that failed to comply.

The key focus of all this is clearly intended for the eyes of major content providers, with Twitter, YouTube and Facebook being primary targets, and on the positive side the Government seems to be focusing their efforts more upon “companies.” But there’s still some confusion over where they draw the line and whether masses of smaller sites would face similar rules, which in practice may be unworkable.

Trying to police the common public expression of negative human thought and balancing that against free speech is sadly fraught with danger (more on that later). Likewise the Government’s approach almost seems to be portraying the offline world as safe by comparison (for children), which of course it isn’t and adult supervision is a must.

Priti Patel MP, UK Home Secretary, said:

“While the internet can be used to connect people and drive innovation, we know it can also be a hiding place for criminals, including paedophiles, to cause immense harm.

It is incumbent on tech firms to balance issues of privacy and technological advances with child protection.

That’s why it is right that we have a strong regulator to ensure social media firms fulfil their vital responsibility to vulnerable users.”

We should remind readers that the future legislation is also expected to include a second attempt at Internet Age Verification (here). This was originally due to be implemented by commercial websites and “apps” that contain pornographic content, with broadband ISPs being forced to block those that failed to comply.

However that approach faced masses of delays and became beset by concerns over weak privacy controls (e.g. handing passports and payment details to companies linked with porn peddlers), cost, the potential impact upon sex workers (i.e. pushing them off-line and back onto the streets), freedom of expression and technical limitations (easy to circumvent, not least via VPN, Proxy Servers and DNS over HTTPS (DoH) etc.).

Summary of Key Points from Gov Statement

* Platforms will need to ensure that “illegal content” is removed quickly and minimise the risk of it appearing, with particularly 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 ‘duty of care’ will only apply to “companies that facilitate the sharing of user generated content, for example through comments, forums or video sharing“. Just because a business has a social media presence, does not mean it will be in scope of the regulation. Business to business services, which provide virtual infrastructure to businesses for storing and sharing content, will not have requirements placed on them. Fewer than 5% of UK businesses will be in scope.

* The proposals assume a higher level of protection for children than for the typical adult user, including, where appropriate, measures to prevent children from accessing age-inappropriate or harmful content. This approach will achieve a more consistent and comprehensive approach to harmful content across different sites and go further than the Digital Economy Act’s focus on online pornography on commercial adult sites.

Some may get the impression above that the Government has watered their original proposals down, although much will depend upon the final legislation and what amendments are made. For example, on the surface it may sound positive that they are only focusing upon “companies,” but this becomes complicated when you realise that it could extend to web hosts, email providers etc. (e.g. you might run a website that isn’t a company, but if your web hosting operator is still affected then indirectly the rules may still apply to you).

A new law might thus result in websites trying to reduce their liability for bad content by introducing automated filtering systems, which are notorious for being overzealous and unable to understand context (e.g. people joking about blowing up a city vs actual terrorist discussions). Only bigger sites could afford to do this but the end result is usually significant over-blocking of lawful content (mass censorship).

In keeping with that there’s the age old problem of how you define things like bullying or hate speech in the first place and then separate that from related content or context, which may include criticism of the same subject, as well as satire, the right to cause offence, political free speech and so forth. Automated filters rarely get this right.

The Government may thus risk creating a draconian censorship regime and harming free speech, like already happens in a number of places (e.g. China, Russia and North Korea, which allow no political dissent and deny their people freedom of speech, are also keen to impose censorship online).

Andrew Glover, Chair of the UK ISPA, said:

“The White Paper outlines important steps towards maintaining and improving trust in online services and the wider digital economy. ISPA’s consumer facing members have been instrumental in making the UK one of the safest places in the world to be online by providing customers with safety and security tools, so ISPA is broadly supportive of the white paper’s agenda.

However, in order to effectively address online harms, it is important for interventions to be targeted at the specific part of the internet ecosystem, so we welcome the proposed approach of focusing measures on platforms that facilitate user generated content.

There are a number of important questions that remain unanswered – especially in a post-Brexit environment – such as how Ofcom will use its new powers, how a regulator would deal with companies not based in the UK and ISP blocking – including how the UK reacts to technical developments such as DNS-over-HTTPS. ISPA will be working with its members on these and other points as we enter the next phase of consultation.”

Toni Vitale, Partner at JMW Solicitors, added:

“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. 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. 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. 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.”

The government will publish a full consultation response in Spring 2020, which will set out further details of the potential enforcement powers Ofcom may have. Check out the Government’s Full Response.

Leave a Comment
12 Responses
  1. Avatar joe

    Not sure this seems any more workable than the last nonsense.

    The safest thing for Mark to do would be to close down comments here and the forums or face the risk of criminal liability.

  2. Avatar Mike

    I guess the reason they allowed Huawei is because China will also be installing their Great Firewall for the UK government.

  3. Avatar Jigsy

    “The UK will never become like China,” they said…

  4. Avatar buggerlugz

    Brilliant idea, give a toothless quango of a regulator control of whats published online…….hmmm yeah! that’ll work! Guess its just another way for the UK’s elite to find high paying jobs for their friends then.

  5. Avatar Optimist

    How will Ofcom force the takedown of content viewable in the UK but uploaded from another country to a website run from a third country to a server hosted in a fourth country if the businesses and governments of the other countries tell Ofcom to get stuffed?

    • Avatar Ryan

      They can’t force a take down of sites or content hosted outside the UK the most they can do is make ISP block access to the site.

    • Avatar Optimist

      @Ryan Somehow I don’t see Ofcom getting away with blocking Facebook, Twitter etc.!

    • Avatar Ryan

      @Optimist it the classic government move it will keep a few people/group happy as it look like the government actually doing something about it, but in reality nothing really will happened so I doubt any site will get blocked anyway.

    • Avatar Mike

      The other issue is LEO’s which are soon to come online, soon you’ll be able to have a non-UK based internet provider.

  6. Avatar Michael

    Nice to know that Ofcom are going to become the british version of Roskomnadzor

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