Update confirms the introduction of an active “duty of care” and a dedicated regulator, as part of a comprehensive new online regulatory regime.

By Alain Traill, Rachael Astin, Gail E. Crawford, and Patrick Mitchell

Following a wave of commentary from industry, the social sector, and other organisations, on 11 February 2020 the UK government set out preliminary details of a new regulatory regime to govern content posted on online platforms. The details were released in an initial response to last year’s online harms white paper, with a full response expected this spring. While some changes have been made to the white paper proposals, seemingly in response to concerns raised by industry and other stakeholders, the government has confirmed that it will introduce an active “duty of care” on organisations to prevent certain content from appearing on their platforms.

The proposed new regime mirrors similar steps taken in other jurisdictions, e.g., Australia, to protect against harmful content online. It is also in-line with the direction of travel of platform regulation at a European level, taking into account, for example, changes to the AVMS Directive (EU) 2018/1808 (AVMSD) to regulate video-sharing platform services (VSPs) in relation to protection of minors and harmful content, and the planned EU Digital Services Act, which is likely to introduce changes to EU law regarding the liability of platform providers for content posted using their services.

Delicate balance required, as regulators and lobbyist warn of the risks of over-regulation while research indicates users seek greater protection.

By Alain Traill

Both the ICO and the outgoing Chief Executive of Ofcom have sounded a cautious note regarding the possible consequences of UK proposals to introduce a new regulatory regime intended to combat online harms. The Internet Association — a Washington based lobbying group — has also voiced its concerns, suggesting that they risk discouraging businesses from continuing to operate in the UK.

The ICO did, however, offer support for key aspects of the proposals, and acknowledged that they identify an “important gap in the existing regulation of the internet”. Furthermore, research carried out on behalf of both Ofcom and the ICO has shown an increasing appetite for online regulation among UK web users.