The Government faces a difficult balancing act of needing to do more to tackle harmful content online, but avoiding harming freedom of expression
It took the Government two years to propose a bill: The UK Government has published today more detail on how it will tackle online harms – replacing the previous model of self-regulation with legislation. The Government had already indicated the direction it wanted to take in its response to the Online Harms White Paper in December 2020, where it pledged to establish a ‘duty of care’ for online platforms and to put Ofcom in charge of enforcing it. Overall, it took more than two years for the Government to take action since the first publication of the Online Harms White Paper in April 2019.
Getting tough on abuse online, even where it is not a criminal offence: The focus of the new rules is on harmful content such as child sexual abuse, terrorist material, suicide content, and online scams. On top of that, ‘category 1 services’ i.e. the largest social media platforms will also have to act on abusive content that falls below the threshold of a criminal offence, or encourages self-harm or disinformation. These platforms will have to state in their terms and conditions how they will address these harms, and Ofcom will be empowered to hold them accountable. With regard to online fraud, companies will be responsible for content posted by users, such as romance scams or fake investment opportunities.
Disinformation may continue to flow freely: The proposal tries to strike a balance between tackling online harms and preserving freedom of expression. This was always going to be a controversial issue, as the debates around how to regulate Big Tech have shown in recent years. Conservative politicians in the UK and in the US have argued that online platforms show an anti-conservative bias in their approach to tackling disinformation. Under the Government’s proposal, users will have avenues for appeal, including to Ofcom, where they think content has been removed unfairly. Category 1 services will have to report regularly on how they mitigate adverse effects to freedom of expression. There are also exceptions (not without controversy) for ‘democratic’ and ‘journalistic’ content, i.e. statements from politicians and from ‘recognised news publishers’. Category 1 services will be forbidden from discriminating against political viewpoints, and articles from news publishers will be exempt. This could create loopholes allowing politicians and journalists to spread disinformation unchallenged.
