Tuesday, 11 February 2020

An Online Harms Compendium

I have written a lot about the Online Harms proposals for a duty of care and an online regulator. Now that the government’s response to the White Paper consultation appears to be imminent, this seems a good time at which to collect it all together for easy reference. [And updated with subsequent posts.]

These posts are generally critical of the government's proposals. What might an alternative approach look like? Section 9 of my submission to the White Paper consultation has some ideas. 

5 June 2018 Regulating the internet – intermediaries to perpetrators The fallacy of the unregulated internet. 

“The choice is not between regulating or not regulating.  If there is a binary choice (and there are often many shades in between) it is between settled laws of general application and fluctuating rules devised and applied by administrative agencies or regulatory bodies; it is between laws that expose particular activities, such as search or hosting, to greater or less liability; or laws that visit them with more or less onerous obligations; it is between regimes that pay more or less regard to fundamental rights; and it is between prioritising perpetrators or intermediaries. … We would at our peril confer the title and powers of Governor of the Internet on a politician, civil servant, government agency or regulator.”

7 October 2018 A Lord Chamberlain for the internet? Thanks, but no thanks ‘Regulation by regulator’ is a bad model for online speech. 

“If we want safety, we should look to the general law to keep us safe. Safe from the unlawful things that people do offline and online. And safe from a Lord Chamberlain of the Internet.”

19 October 2018 Take care with that social media duty of care Analysing why offline duties of care do not transpose into online speech regulation. 

“The law does not impose a universally applicable duty of care to take steps to prevent or reduce any kind of foreseeable harm that visitors may cause to each other; certainly not when the harm is said to have been inflicted by words rather than by a knife, a flying lump of concrete or an errant golf ball.”

“...the regulator is not an alchemist. It may be able to produce ad hoc and subjective applications of vague precepts, and even to frame them as rules, but the moving hand of the regulator cannot transmute base metal into gold. Its very raison d'etre is flexibility, discretionary power and nimbleness. Those are a vice, not a virtue, where the rule of law is concerned, particularly when freedom of individual speech is at stake. … Close scrutiny of any proposed social media duty of care from a rule of law perspective can help ensure that we make good law for bad people rather than bad law for good people.”

18 April 2019 Users Behaving Badly – the Online Harms White Paper Analysing the White Paper.

“Whilst framed as regulation of tech companies, the White Paper’s target is the activities and communications of online users. “Ofweb” would regulate social media and internet users at one remove. It would be an online sheriff armed with the power to decide and police, via its online intermediary deputies, what users can and cannot say online. … This is a mechanism for control of individual speech such as would not be contemplated offline and is fundamentally unsuited to what individuals do and say online.”

5 May 2019 The Rule of Law and the Online Harms White Paper Analysing the White Paper against the Ten Point Rule of Law Test proposed in March.  

“The idea of  the test is less to evaluate the substantive merits of the government’s proposal … but more to determine whether it would satisfy fundamental rule of law requirements of certainty and precision, without which something that purports to be law descends into ad hoc command by a state official.”

28 June 2019 Speech is not a tripping hazard My detailed submission to the government consultation on the White Paper.

"The duty of care would trump existing legislation. The Rhodes case study illustrates the extent to which the proposed duty of care would, to all intents and purposes, set up a parallel legal regime controlling speech online, comprising rules devised by the proposed regulator under the umbrella of a general rubric of harm. This parallel regime would in practice take precedence over the body of legislation in the statute book and common law that has been carefully crafted to address the boundaries of a wide variety of different kinds of speech."

2 February 2020 Online Harms IFAQ. Insufficiently Frequently Asked Questions: a grand tour of the landscape, taking in a digital Lord Chamberlain, harm reduction cycles, systemic versus content regulation, fundamental rights, the rule of law and more.

“The particular vice at the heart of the White Paper is the latitude for the regulator to deem things to be harmful. If the proposals were only about safety properly so-called, such as risk of death and personal injury, that would correspond to offline duties of care and draw a clear line. Or if the proposals were only about unlawful online behaviour, the built-in line between lawful and unlawful would provide some protection against overreach. But the proposals are neither, and they do not.”

16 February 2020 Online Harms Deconstructed - the Initial Consultation Response 

"Preliminaries aside, what is the current state of the government’s thinking? ... This post takes a microscope to some of the main topics, comparing the White Paper text with that in the Response."

Also of interest may be my keynote address to the Society of Computers and Law Annual Conference on 2 October 2019, The internet: broken or about to be broken?.   

And just to show that there is nothing new under the sun, my January 2012 post on the inappropriateness of broadcast regulation for individual speech on the internet, including my April 1998 article on the topic in the Financial Times. 

12 May 2020 Disinformation and Online Harms Presentation to CIGR Annual Conference, 1 May 2020. 

"If you can't articulate a clear and certain rule about speech, you don't get to make a rule at all."  

24 May 2020 A Tale of Two Committees

"Two Commons Committees –the Home Affairs Committee and the Digital, Culture, Media and Sport Committee – have recently held evidence sessions with government Ministers discussing, among other things, the government’s proposed Online Harms legislation. These sessions proved to be as revealing, if not more so, about the government’s intentions as its February 2020 Initial Response to the White Paper."

20 June 2020 Online Harms and the Legality Principle

"The government would no doubt be tempted to address [legality] issues by including statutory obligations on the regulator, for instance to have regard to the fundamental right of freedom of expression and to act proportionately. That may be better than nothing. But can a congenital defect in legislation really be cured by the statutory equivalent of exhorting the patient to get better?" 

24 June 2020 Online Harms Revisited Based on a panel presentation to the Westminster e-Forum event on Online Regulation on 23 June 2020.

"Heading down the “law of everything” road was always going to land the government in the morass of complexity and arbitrariness in which it now finds itself. One of the core precepts of the White Paper is imposing safety by design obligations on intermediaries. But if anything is unsafe by design, it is this legislation."

24 September 2020 Submission to Ofcom Call for Evidence 

"The question for an intermediary subject to a legal duty of care will be: “are we obliged to 
consider taking steps (and if so what steps) in respect of these words, or this image, in this context?”

If we are to gain an understanding of where the lines would be drawn, we cannot shelter behind comfortable abstractions. We have to grasp the nettle of concrete examples, however uncomfortable that may be."

"These are difficult issues that go to the heart of any proposal to impose a duty of care. They ought to have been the subject of debate over the last couple of years. Unfortunately they have been buried in the rush to include every conceivable kind of harm - however unsuited it might be to the legal instrument of a duty of care - and in discussions of ‘systemic’ duties of care abstracted from consideration of what should and should not amount to harm.

It should be no surprise if the government’s proposals became bogged down in a quagmire resulting from the attempt to institute a universal law of everything, amounting to little more than a vague precept not to behave badly online. The White Paper proposals were a castle built on quicksand, if not thin air.

The proposed general definition of harm, while not perfect, gives some shape to the edifice. It at least sets the stage for a proper debate on the limits of a duty of care, the legally protectable nature of personal safety online, and its relationship to freedom of speech – even if that should have taken place two years ago. Whether regulation by regulator is the appropriate way to supervise and police an appropriately drawn duty of care in relation to individual speech is another matter."

16 May 2021 Harm Version 3.0: the draft Online Safety Bill

"Internal conflicts between duties, underpinned by the Version 3.0 approach to the notion of harm, sit at the heart of the draft Bill. For that reason, despite the government’s protestations to the contrary, the draft Bill will inevitably continue to attract criticism as - to use the Secretary of State's words - a censor’s charter."

"The government’s draft Online Safety Bill announcement claimed that the measures required of ordinary and large providers would “remove the risk that online companies adopt restrictive measures or over-remove content in their efforts to meet their new online safety duties.” (emphasis added)

This bold statement – in contrast with the more modest claim in the Impact Assessment - shows every sign of being another unfulfillable promise, whether for news publisher content or user-generated content generally.

Lord Black said in the Lords debate:
“We have the opportunity with this legislation to lead the world in ensuring proper regulation of news content on the internet, and to show how that can be reconciled with protecting free speech and freedom of expression. It is an opportunity we should seize.”
It can be no real surprise that a solution to squaring that circle is as elusive now as when the Secretary of State wrote to the Society of Editors two years ago. It has every prospect of remaining so."

28 June 2021 On the trail of the Person of Ordinary Sensibilities

"The draft Bill's attempt to convert subjective perception of content into an objective standard illustrates just how difficult it is to apply concepts of injury and harm to speech. The cascading levels of definition, ending up with a provision that appears to give precedence to an individual’s subjective claim to significant adverse psychological impact, will bear close scrutiny – not only in their own right, but as to how a service provider is meant to go about complying with them."

[Updated 22 February 2020 to add 'Online Harms Deconstructed', 28 May 2020 to add 'A Tale of Two Committees', 22 June 2020 to add 'Online Harms and the Legality Principle', 11 July 2020 to add CIGR presentation and 'Online Harms Revisited'; 15 Dec 2020 to add Ofcom submission; 19 December 2020 to add 'The Online Harms edifice takes shape'; 17 May 2021 to add "Harm Version 3.0: the draft Online Safety Bill"; and 11 July 2021 to add 'Carved out or carved up? The draft Online Safety Bill and the press' and 'On the trail of the Person of Ordinary Sensibilities.']

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