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Online Harms – UK Finalise Plan for Ofcom Internet Regulation

Tuesday, Dec 15th, 2020 (10:14 am) - Score 3,696

The UK government has today appeared to finalise their plans for turning Ofcom into a regulator of internet content via a new legal “duty of care“, which will hand them new powers to force websites (e.g. Facebook) into removing “harmful” content (e.g. terrorism, child abuse, self-harm and suicide imagery etc.).

Striking the right balance between freedom of expression and outright censorship is no easy task. Indeed, for a long time now it’s been clear that the old model of self-regulation has been struggling to keep pace and the Government believes that too much “harmful” content is thus being allowed to slip through a fairly weak net.

Plenty of examples exist for this, such as the rise of the ISIS terrorist group online a few years ago, as well as mass state sponsored propaganda from hostile countries, online bullying, the spread of COVID-19 related 5G conspiracy theories (encouraging criminal attacks against infrastructure and key telecoms workers) and so forth. Social media firms did eventually catch-up to some of this but they’re often late to the party.

In response the Government have been busy developing their Online Harms Bill Online Safety Bill, which proposes to introduce new laws for websites that would be enforced by Ofcom through a Code of Practice (CoP). The key focus is clearly on bigger “companies” (e.g. Facebook, Twitter and YouTube), although there’s still a risk that masses of smaller sites (blogs, forums etc.) could face some of the same rules, but in practice that may be unworkable.

NOTE: Boris Johnson’s (PM) Conservative government has a significant majority of 80+ seats, which makes it easier for them to pass new legislation.

One obvious challenge in all this is whether or not the Government can actually do a better job through legislated regulation than the industry has done itself. Sadly, trying to police the common public expression of negative human thought, while balancing that against free speech, is often fraught with difficulty (more on that later). The application of new laws alone doesn’t make the underlying job any easier.

Nevertheless, the government, which almost seems to be portraying the offline world as safe by comparison (it isn’t and adult supervision is a must for children), seeks “legislation to make the UK the safest place in the world to be online” and today’s plan aspires to make that a reality. The new rules will thus apply to any company in the world hosting user-generated content online accessible by people in the UK or enabling them to privately or publicly interact with others online.

Summary of Key Points

— The announcement starts off by talking about the need to “remove and limit the spread of illegal content such as child sexual abuse, terrorist material and suicide content” and the Government say they’re still consulting with the Law Commission on “whether the promotion of self harm should be made illegal.” On top of that “tech platforms” will also need to do far more to “protect children from being exposed to harmful content or activity such as grooming, bullying and pornography.”

— Ofcom will be able to levy fines of up to 10% of a company’s annual global turnover (or £18m, whichever is higher) on those that are found to have failed in their duty of care. The regulator’s running costs for all this will also be paid by companies that fall under the scope of the law (details not yet clear), albeit only the biggest ones (e.g. Facebook etc.).

— Ofcom also gains the power to block non-compliant services or apps from being viewed in the UK (possibly subject to court approval), which we assume will be imposed through mobile operators, app provider and fixed broadband ISPs etc. As we know, ISP based website blocks are inherently easy to circumvent and anybody who goes actively looking for such content will no doubt still be able to find it if they want.

— The law doesn’t just focus on social media sites, but also extends to internet search engines, dating apps, online marketplaces, video sharing platforms (YouTube), instant messaging tools, consumer cloud storage, video games with user interaction (we assume this means chat services), P2P services, website forums, commercial pornography sites and quasi-private messaging services.

Where appropriate, lower-risk services will be exempt from the duty of care to avoid putting disproportionate demands on businesses. This includes exemptions for retailers who only offer product and service reviews and software used internally by businesses. Email services will also be exempt.

— The law creates different categories of responsibility for content and activity. For example, Category 1 has the strictest rules and will only apply to the biggest players (e.g. Facebook, TikTok, Instagram and Twitter). As part of that they’ll have to enforce the new rules transparently (including public reports on their progress) and consistently, while also making “clear what type of ‘legal but harmful’ content is acceptable on their platforms in their terms” (tricky since the Government itself has yet to clearly define this) and making it easy to report such content.

— The vast majority of UK businesses (smaller ones) will instead fall into Category 2 and face softer rules, but it’s not yet immediately clear what this means.

— All companies that fall under the scope of this law must have or implement mechanisms so people can easily report harmful content or activity, while also being able to appeal the takedown of content. But, as part of protecting freedom of speech, the rules will not be extend to the articles and comments sections on news websites (it’s not yet clear where they will draw the line on that definition of ‘news publishers’, so as to avoid it becoming a loophole).

— The new bill will contain provisions for imposing criminal sanctions on senior managers, but this can only be introduced later via separate secondary legislation and only if there’s cause to do so (i.e. it won’t be enacted unless companies significantly fail in their new duty of care or fail to correctly respond to Ofcom’s information requests etc.).

— The bill doesn’t extend to financial harms, such as fraud and the sale of unsafe goods, although some limited types of advertising will be in scope (e.g. influencer adverts posted on social media).

As you’d expect there are a number of issues to touch on above. Firstly, the focus on “companies” does appear to be centred on big social networks, but the threat of huge fines might also result in websites trying to reduce their liability for such 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 in a video game vs actual terrorists). Only bigger sites could actually afford to do this and the end result is usually significant over-blocking of lawful content (mass censorship).

Lest we forget that the economic models for internet content are radically different from the offline world. Many websites, for example, can be written by just one person or a few people and yet be read by millions, despite running off a shoestring budget (this is how the internet works and remains one of its core appeals). Forcing such sites to implement unaffordable measures, which will also need to work across lots of different software, may be unworkable. On the other hand, we don’t yet know precisely how the Category 2 rules will differ for smaller players.

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 (allowed under current freedom of speech), political free speech and so forth. Automated filters rarely get this stuff right.

The Government seem to be asking commercial companies to define things like “legal but harmful” content in their terms, which seems unwise (the government must set the standard here, not shop it out), but they do include one useful example of “dangerous disinformation and misinformation about coronavirus vaccines.”

NOTE: Commercial companies will always seek to reduce their liability, which means they’ll often sacrifice freedom of speech in order to keep lawyers at bay.

The Government’s plan to include instant messaging services, such as WhatsApp and closed social media groups, within the scope of the regulations also creates a huge problem as many such platforms use end-to-end encryption (i.e. not even the service owner can see what’s being said). Some will thus see this as an attempt to ban such encryption on those specific platforms (otherwise it will be hard to meet the new rules), which is somewhat of a double-edged sword as it would make them less secure (i.e. encryption keys controlled by the company rather than hidden).

Finding a balance on this front is difficult because encryption is not a specific service, it’s a method that is used all over the place from financial transactions to website communications (HTTPS etc.), and there’s absolutely nothing that anybody could do to stop people making their own encryption (this is common). As security experts so often warn, you can’t allow one state or group to have special access and then expect that not to be abused by others (e.g. hackers or less democratic countries).

Equally we can’t always assume that we will be governed by a truly democratic system that protects our freedoms and privacy. Giving a future anti-democratic government such control over what we can access and how we communicate would thus seem to be unwise.

Oliver Dowden MP, Digital secretary, said:

“I’m unashamedly pro tech but that can’t mean a tech free for all. Today Britain is setting the global standard for safety online with the most comprehensive approach yet to online regulation. We are entering a new age of accountability for tech to protect children and vulnerable users, to restore trust in this industry, and to enshrine in law safeguards for free speech.

This proportionate new framework will ensure we don’t put unnecessary burdens on small businesses but give large digital businesses robust rules of the road to follow so we can seize the brilliance of modern technology to improve our lives.”

Dame Melanie Dawes, Ofcom CEO, said:

“Being online brings huge benefits, but four in five people have concerns about it. That shows the need for sensible, balanced rules that protect users from serious harm, but also recognise the great things about online, including free expression. We’re gearing up for the task by acquiring new technology and data skills, and we’ll work with Parliament as it finalises the plans.”

At the time of writing, we haven’t yet been able to see the new “interimCodes of Practice that are said to accompany this announcement today. Otherwise, the Government seem to be aiming to bring the new bill before parliament in 2021, which in reality means that it probably won’t actually come into force until 2022 or later.

The announcement also includes no mention of the much-delayed proposals for a new system of Internet Age Verification (here), which was supposed to have been rolled into it. This was originally due to be implemented last year by commercial websites and “apps” containing pornographic content (ISPs would have to block those that failed to comply).

The aforementioned approach faced 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 or DNS over HTTPS etc.).

As it stands the Government faces an incredibly difficult balancing act. On the one hand they need to do more to tackle harmful online content, but on the other they have to avoid the risk of creating a draconian censorship regime and harming free speech, even though that might not be their direct intention. Clear definitions of what does and does not constitute “harmful content” are vital to this endeavour.

Meanwhile we’re still left with plenty of questions, such as how long will such platforms be given to remove such content? A time span of just 1 hour was mentioned before, but that is unworkable on smaller sites (humans need to sleep and take breaks) and on bigger sites would encourage overzealous filtering. Likewise, it remains unclear whether the new rules will extend to tackle conspiracy theories and fake news, which some politicians often exploit (e.g. Donald Trump).

UPDATE 4:53pm

We’ve had a comment from the UK Internet Service Providers Association (ISPA).

ISPA Chair, Andrew Glover, said:

“While our members will not be subject to the duty of care, it is clear that they are expected to play a supporting role, either through the implementation of business disruption measures or through taking voluntary action to address the most serious harms.

These proposals seem sensible, and we particularly welcome the fact that blocking orders would be subject to court approval and can be extended to companies that offer similar services as our members. However, we await further clarity on these points and we will push for a proportionate implementation of the new rules that recognises the ongoing efforts and investment from UK ISPs into online safety.”

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By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on X (Twitter), Mastodon, Facebook and .
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16 Responses
  1. Avatar photo André says:

    Time to get a VPN.
    I’m REALLY uncomfortable about some unaccountable jobsworth in government deciding what I’m allowed to see. All I the name of the better good, of course.
    I suppose websites and content that are against government policies are harmful in that they promote dissent and social unrest. You get the idea.

    1. Avatar photo timeless says:

      my guess is its going to be used more by butthurt MPs who get called out, only recently read a story about an MP calling for more regulation on social media after they were called out on some of their lies and didnt like the responses they were getting.

  2. Avatar photo Alec Broughton says:

    Any idea of the source for the 80% figure and what those specific concerns are?

    “Being online brings huge benefits, but four in five people have concerns about it.”

    1. Mark-Jackson Mark Jackson says:

      It’s not stated, but probably one of Ofcom’s media attitudes or child internet safety reports.

    2. Avatar photo André says:

      This statement is so vague as to be nearly meaningless.
      Makes for good media fodder, and an apparent justification of the unjustifiable.
      We are slowly walking into the abyss.

  3. Avatar photo Jon Baptiste says:

    I don’t get the point of banning Huawei if the UK is going down the same ideological path anyways…

    1. Avatar photo Pepe says:

      Spot on.

    2. Avatar photo timeless says:

      dont quote me but from how l read it, the bans were spurred on by Trump who, at least from how l perceived it was saying the UK wouldnt get a trade deal if we still supported the company and had their hardware in our infrastructure, no matter how you look at it though just about everything has a “made in china” sticker on it, lm willing to bet half the components in my laptop were made in china in some way or form.

  4. Avatar photo Matthew Morgan says:

    This goes down the path of censorship and anyone supporting such a bill is a useful idiot for this censorship. Governments will use your concerns to their advantage.

    The whole harmful but not illegal stuff is propaganda to provide cover for the censorship to be expanded. This country will end up with internet as censored as that in China if people don’t oppose this.

    You don’t even have to wait for a dictatorship as any government who senses a upcoming political crisis will only have to phone up Ofcom to ban any mention of that crisis in 1984 style.

  5. Avatar photo Brian Storey says:

    A difficult topic for a variety of reasons.

    It’s seems to me like the only fair and reasonable way of approaching this is to offer some centralised and trustworthy public scoring system for major (or anyone else that wants to participate) platforms.

    Further, that website owner needs to have that scoring or category published in a prominent location with supporting pages behind it.

    By virtue of this, the platform will have a degree of self policing, with a right to explain why / why not certain content remained when it comes to scoring / audit / assessment time. This can leverage the type of “report this” systems whilst making a distinction between secure communications with a different treatment mechanism. Someone not liking the content of an open post is very different to an evolved, evidence based based RIPA type action.

    Whilst a rather crude comparison, something like a Food Standards Agency Hygiene rating approach with an audit / compliance framework behind it.

  6. Avatar photo Pepe says:

    More Tory fascism. Mind you this would have happened regardless of party.

    1. Avatar photo Pepe says:

      In addition, anyone thinking the buck stops here is so utterly delusional it’s not funny. This is only where it begins. The worst is yet to come.

    2. Mark-Jackson Mark Jackson says:

      Yes it’s got far wider political support than just via the party of Government.

  7. Avatar photo ABritishGamer says:

    Yeah, I make a lot of jokes about blowing up cities in GTA and sharing with my friends. In all seriousness this is a serious issue; this may have a serious effect on the gaming community inside the United Kingdom. I play a lot of games and encounter a lot of online harassment but the best course of action is to report and understand really these politicians do not understand internet culture maybe soon the government will try to block VPNs.

    1. Avatar photo timeless says:

      indeed, the biggest problem l foresee is that instead of being used as proposed that it will be used to stifle criticism, just recently Hobbs made a very public statement about internet trolls hurting her feelings suggesting that there should be more policing of the internet, while l agree in respects that there needs to be more ways to report trolls on social media that actually do threaten harm and cause real distress l believe on the most part when politicians suggest doing something their ulterior motives tend to be more about controlling information and controlling communications which would be especially useful for those wanting to curb protests.

      it sounds like a conspiracy theory in itself but sadly the technology is there to do just that and it has been used in the past in some foreign countries which have a tighter grip on online information.

    2. Avatar photo ABritishGamer says:

      Yeah, I just hope this doesn’t turn into 1984 ministry of truth like my friend puts Computing Forever a youtuber who is a tech channel but really political he is from Ireland and gets involved in a lot UK and irish politics.

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