The Rule of Law and the Online Harms White Paper

Before the publication of the Online Harms White Paper on 8 April 2019 I proposed a Ten Point Rule of Law test to which it might usefully be subjected.

The idea of  the test is less to evaluate the substantive merits of the government’s proposal – you can find an analysis of those here – 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.

Here is an analysis of the White Paper from that perspective. The questions posed are whether the White Paper demonstrates sufficient certainty and precision in respect of each of the following matters.

1.    Which operators are and are not subject to the duty of care

The White Paper says that the regulatory framework should apply to “companies that allow users to share or discover user-generated content, or interact with each other online.”

This is undoubtedly broad, but on the face of it is reasonably clear.  The White Paper goes on to provide examples of the main types of relevant service:

-             Hosting, sharing and discovery of user-generated content (e.g. a post on a public forum or the sharing of a video).

-             Facilitation of public and private online interaction between service users (e.g. instant messaging or comments on posts).

However these examples introduce a significant element of uncertainty. Thus, how broad is ‘facilitation’? The White Paper gives a clue when it mentions ancillary services such as caching. Yet it is difficult to understand the opening definition as including caching.

The White Paper says that the scope will include “social media companies, public discussion forums, retailers that allow users to review products online, along with non-profit organisations, file sharing sites and cloud hosting providers.”  In the Executive Summary it adds messaging services and search engines into the mix. Although the White Paper does not mention them, online games would clearly be in scope as would an app with social or discussion features.

Applicability to the press is an area of significant uncertainty. Comments sections on newspaper websites, or a separate discussion forum run by a newspaper such as in the Karim v Newsquest case would on the face of it be in scope. However, in a letter to the Society of Editors the Secretary of State has said:

“… as I made clear at the White Paper launch and in the House of Commons, where these services are already well regulated, as IPSO and IMPRESS do regarding their members' moderated comment sections, we will not duplicate those efforts. Journalistic or editorial content will not be affected by the regulatory framework.”

This exclusion is nowhere stated in the White Paper. Further, it does not address the fact that newspapers are themselves users of social media. They have Facebook pages and Twitter accounts, with links to their own websites. As such, their own content is liable to be affected by a social media platform taking action to suppress user content in performance of its duty of care.

The verdict on this section might have been ‘extremely broad but clearly so’. However the uncertainty introduced by ‘facilitation’, and by the lack of clarity about newspapers, results in a FAIL.

2.      To whom the duty of care is owed

The answer to this appears to be ‘no-one’. That may seem odd, especially when Secretary of State Jeremy Wright referred in a recent letter to the Society of Editors to “a duty of care between companies and their users”, but what is described in the White Paper is not in fact a duty of care at all.

The proposed duty would not provide users with a basis on which to make a damages claim against the companies for breach, as is the case with a common law duty of care or a statutory duty of care under, say, the Occupiers’ Liability Act 1957.

Nor, sensibly, could the proposed duty do so since its conception of harm strays beyond established duty of care territory of risk of physical injury to individuals, into the highly contestible region of speech harms and then on into the unmappable wilderness of harm to society.

Thus in its introduction to the harms in scope the White Paper starts by referring to online content or activity that ‘harms individual users’, but then goes on: “or threatens our way of life in the UK, either by undermining national security, or by reducing trust and undermining our shared rights, responsibilities to foster integration.”

In the context of disinformation it refers to “undermining our respect and tolerance for each other and confusing our understanding of what is happening in the wider world.”

Whatever (if anything) these abstractions may mean, they are not the kind of thing that can properly be made the subject of a legal duty of care in the offline world sense of the phrase.

The proposed duty of care is something quite different: a statutory framework giving a regulator discretion to decide what should count as harmful, what kinds of behaviour by users should be regarded as causing harm, what rules should be put in place to counter it, and which operators to prioritise.

From a rule of law perspective the answer to the question posed is that it does seem clear that the duty would be owed to no one. In that limited sense it probably rates a PASS, but only by resisting the temptation to change that to FAIL for the misdescription of the scheme as creating a duty of care.

Nevertheless, the fact that the duty is of a kind that is owed to no-one paves the way for a multitude of FAILs for other questions.

3.      What kinds of effect on a recipient will and will not be regarded as harmful

This is an obvious FAIL. The White Paper has its origins in the Internet Safety Strategy Green Paper, yet does not restrict itself to what in the offline world would be regarded as safety issues.  It makes no attempt to define harm, apparently leaving it up to the proposed Ofweb to decide what should and should not be regarded as harmful. Some examples given in the White Paper suggest that effect on the recipient is not limited to psychological harms, or even distress.

This lack of precision is exacerbated by the fact that the kinds of harm contemplated by the White Paper are not restricted to those that have an identifiable effect on a recipient of the information, but appear to encompass nebulous notions of harm to society.

4.      What speech or conduct by a user will and will not be taken to cause such harm

The answer appears to be, potentially, “any”. The WP goes beyond defined unlawfulness into undefined harm, but places no limitation on the kind of behaviour that could in principle be regarded as causing harm. From a rule of law perspective of clarity this may be a PASS, but only in the sense that the kind of behaviour in scope is clearly unlimited.

5.      If risk to a hypothetical recipient of the speech or conduct in question is sufficient, how much risk suffices and what are the assumed characteristics of the notional recipient

FAIL. There is no discussion of either of these points, beyond emphasising many times that children as well as adults should be regarded as potential recipients (although whether the duty of care should mean taking steps to exclude children, or to tailor all content to be suitable for children, or a choice of either, or something else, is unclear). The White Paper makes specific reference to children and vulnerable users, but does not limit itself to those.

6.      Whether the risk of any particular harm has to be causally connected (and if so how closely) to the presence of some particular feature of the platform

FAIL. The White Paper mentions, specifically in the context of disinformation, the much discussed amplification, filter bubble and echo chamber effects that are associated with social media. More broadly it refers to ‘safety by design’ principles, but does not identify any design features that are said to give rise to a particular risk of harm.

The safety by design principles appear to be not about identifying and excluding features that could be said to give rise to a risk of harm, but more focused on designing in features that the regulator would be likely to require of an operator in order to satisfy its duty of care.

Examples given include clarity to users about what forms of content are acceptable, effective systems for detecting and responding to illegal or harmful content, including the use of AI-based technology and trained moderators; making it easy for users to report problem content, and an efficient triage system to deal with reports.

7.      What circumstances would trigger an operator's duty to take preventive or mitigating steps

FAIL. The specification of such circumstances would left up to the discretion of Ofweb, in its envisaged Codes of Practice or, in the case of terrorism or child sexual exploitation and abuse, the discretion of the Home Secretary via approval of OfWeb’s Codes of Practice.

The only concession made in this direction is that the government is consulting on whether Codes of Practice should be approved by Parliament. However it is difficult to conclude that laying the detailed results of a regulator’s ad hoc consideration before Parliament for approval, almost certainly on a take it or leave it basis, has anything like the same democratic or constitutional force as requiring Parliament to specify the harms and the nature of the duty of care with adequate precision in the first place.

8.      What steps the duty of care would require the operator to take to prevent or mitigate harm (or a perceived risk of harm)

The White Paper says that legislation will make clear that companies must do what is reasonably practicable. However that is not enough to prevent a FAIL, for the same reasons as 7. Moreover, it is implicit in the White Paper section on Fulfilling the Duty of Care that the government has its own views on the kinds of steps that operators should be taking to fulfil the duty of care in various areas. This falls uneasily between a statutorily defined duty, the role of an independent regulator in deciding what is required, and the possible desire of government to influence an independent regulator.

9.      How any steps required by the duty of care would affect users who would not be harmed by the speech or conduct in question

FAIL. The White Paper does not discuss this, beyond the general discussion of freedom of expression in the next question.

10.   Whether a risk of collateral damage to lawful speech or conduct (and if so how great a risk of how extensive damage), would negate the duty of care

The question of collateral damage is not addressed, other than implicitly in the various statements that the government’s vision includes freedom of expression online and that the regulatory framework will “set clear standards to help companies ensure safety of users while protecting freedom of expression”.

Further, “the regulator will have a legal duty to pay due regard to innovation, and to protect users’ rights online, taking particular care not to infringe privacy or freedom of expression.” It will “ensure that the new regulatory requirements do not lead to a disproportionately risk averse response from companies that unduly limits freedom of expression, including by limiting participation in public debate.”

Thus consideration of the consequence of a risk of collateral damage to lawful speech it is left up to the decision of a regulator, rather than to the law or a court. The regulator will presumably, by the nature of the proposal, be able to give less weight to the risk of suppressing lawful speech that it considers to be harmful. FAIL.

Postscript It may said against much of this analysis that precedents exist for appointing a discretionary regulator with power to decide what does and does not constitute harmful speech.

Thus, for broadcast, the Communications Act 2003 does not define “offensive or harmful” and Ofcom is largely left to decide what those mean, in the light of generally accepted standards.

Whatever the view of the appropriateness of such a regime for broadcast, the White Paper proposals would regulate individual speech. Individual speech is different. What is a permissible regulatory model for broadcast is not necessarily justifiable for individuals, as was recognised in the US Communications Decency Act case (Reno v ACLU) in the early 1990s. The US Supreme Court found that:

“This dynamic, multi-faceted category of communication includes not only traditional print and news services, but also audio, video and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, ‘the content on the internet is as diverse as human thought’ ... We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.’

In these times it is hardly fashionable, outside the USA, to cite First Amendment jurisprudence. Nevertheless, the proposition that individual speech is not broadcast should carry weight in a constitutional or human rights court in any jurisdiction.

Users Behaving Badly – the Online Harms White Paper

Last Monday, having spent the best part of a day reading the UK government's Online Harms White Paper, I concluded that if the road to hell was paved with good intentions, this was a motorway.

Nearly two weeks on, after full and further consideration, I have found nothing to alter that view. This is why.

The White Paper

First, a reminder of what the White Paper proposes. The government intends to legislate for a statutory ‘duty of care’ on social media platforms and a wide range of other internet companies that "allow users to share or discover user-generated content, or interact with each other online". This could range from public discussion forums to sites carrying user reviews, to search engines, messaging providers, file sharing sites, cloud hosting providers and many others. 

The duty of care would require them to “take more responsibility for the safety of their users and tackle harm caused by content or activity on their services”. This would apply not only to illegal content and activities, but also to lawful material regarded as harmful.

The duty of care would be overseen and enforced by a regulator armed with power to fine companies for non-compliance. That might be an existing or a new body (call it Ofweb).

Ofweb would set out rules in Codes of Practice that the intermediary companies should follow to comply with their duty of care. For terrorism and child sexual abuse material the Home Secretary would have direct control over the relevant Codes of Practice.

Users would get a guaranteed complaints mechanism to the intermediary companies. The government is consulting on the possibility of appointing designated organisations who would be able to make ‘super-complaints’ to the regulator.

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.

Which lawful content would count as harmful is not defined. The White Paper provides an ‘initial’ list of content and behaviour that would be in scope: cyberbullying and trolling; extremist content and activity; coercive behaviour; intimidation; disinformation; violent content; advocacy of self-harm; promotion of Female Genital Mutilation (FGM).

This is not a list that could readily be transposed into legislation, even if that were the government’s intention. Some of the topics - FGM, for instance – are more specific than others. But most are almost as unclear as ‘harmful’ itself. For instance the White Paper gives no indication as to what would amount to trolling. It says only that ‘cyberbullying, including trolling, is unacceptable’. It could as well have said ‘behaving badly is unacceptable’.

In any event the White Paper leaves the strong impression that the legislation would eschew even that level of specificity and build the regulatory structure simply on the concept of ‘harmful’.

The White Paper does not say in terms how the ‘initial’ list of content and behaviour in scope would be extended. It seems that the regulator would decide:

“This list is, by design, neither exhaustive nor fixed. A static list could prevent swift regulatory action to address new forms of online harm, new technologies, content and new online activities.” [2.2]

In that event Ofweb would effectively have the power to decide what should and should not be regarded as harmful.

The White Paper proposes some exclusions: harms suffered by companies as opposed to individuals, data protection breaches, harms suffered by individuals resulting directly from a breach of cyber security or hacking, and all harms suffered by individuals on the dark web rather than the open internet.

Here is a visualisation of the White Paper proposals, alongside comparable offline duties of care. 

  
Good intentions

The White Paper is suffused with good intentions. It sets out to forge a single sword of truth and righteousness with which to assail all manner of online content from terrorist propaganda to offensive material.

However, flying a virtuous banner is no guarantee that the army is marching in the right direction. Nor does it preclude the possibility that specialised units would be more effective.

The government presents this all-encompassing approach as a virtue, contrasted with:

“a range of UK regulations aimed at specific online harms or services in scope of the White Paper, but [which] creates a fragmented regulatory environment which is insufficient to meet the full breadth of the challenges we face” [2.5].

An aversion to fragmentation is like saying that instead of the framework of criminal offences and civil liability, focused on specific kinds of conduct, that make up our mosaic of offline laws we should have a single offence of Behaving Badly.

We could not contemplate such a universal offence with equanimity. A Law against Behaving Badly would be so open to subjective and arbitrary interpretation as to be the opposite of law: rule by ad hoc command. Assuredly it would fail to satisfy the rule of law requirement of reasonable certainty. By the same token we should treat with suspicion anything that smacks of a universal Law against Behaving Badly Online.

In placing an undefined and unbounded notion of harm at the centre of its proposals for a universal duty of care, the government has set off down that path.

Three degrees of undefined harm

Harm is an amorphous concept. It changes shape according to the opinion of whoever is empowered to apply it: in the government’s proposal, Ofweb.

Even when limited to harm suffered by an individual, harm is an ambiguous term. It will certainly include objectively ascertainable physical injury – the kind of harm to which comparable offline duties of care are addressed.

But it may also include subjective harms, dependent on someone’s own opinion that they have suffered what they regard as harm. When applied to speech, this is highly problematic. One person may enjoy reading a piece of searing prose. Another may be distressed. How is harm, or the risk of harm, to be determined when different people react in different ways to what they are reading or hearing? Is distress enough to render something harmful? What about mild upset, or moderate annoyance? Does offensiveness inflict harm? At its most fundamental, is speech violence? 

‘Harm’ as such has no identifiable boundaries, at least none that would pass a legislative certainty test.

This is particularly evident in the White Paper’s discussion of Disinformation. In the context of anti-vaccination the White Paper notes that “Inaccurate information, regardless of intent, can be harmful”.

Having equated inaccuracy with harm, the White Paper contradictorily claims that the regulator and its online intermediary proxies can protect users from harm without policing truth or accuracy:

“We are clear that the regulator will not be responsible for policing truth and accuracy online.” [36] 

“Importantly, the code of practice that addresses disinformation will ensure the focus is on protecting users from harm, not judging what is true or not.” [7.31]

The White Paper acknowledges that:

“There will be difficult judgement calls associated with this. The government and the future regulator will engage extensively with civil society, industry and other groups to ensure action is as effective as possible, and does not detract from freedom of speech online” [7.31]

The contradiction is not something that can be cured by getting some interested parties around a table. It is the cleft stick into which a proposal of this kind inevitably wedges itself, and from which there is no escape.

A third variety of harm, yet more nebulous, can be put under the heading of ‘harm to society’. This kind of harm does not depend on identifying an individual who might be directly harmed. It tends towards pure abstraction, malleable at the will of the interpreting authority.

Harms to society feature heavily in the White Paper, for example: content or activity that:

“threatens our way of life in the UK, either by undermining national security, or by reducing trust and undermining our shared rights, responsibilities and opportunities to foster integration.”

Similarly:

“undermine our democratic values and debate”;

“encouraging us to make decisions that could damage our health, undermining our respect and tolerance for each other and confusing our understanding of what is happening in the wider world.”

This kind of prose may befit the soapbox or an election manifesto, but has no place in or near legislation.

Democratic deficit

One particular concern is the potential for a duty of care supervised by a regulator and based on a malleable notion of harm to be used as a mechanism to give effect to some Ministerial policy of the day, without the need to obtain legislation.

Thus, two weeks before the release of the White Paper Health Secretary Matt Hancock suggested that anti-vaxxers could be targeted via the forthcoming duty of care.

The White Paper duly recorded, under “Threats to our way of life”, that “Inaccurate information, regardless of intent, can be harmful – for example the spread of inaccurate anti-vaccination messaging online poses a risk to public health.” [1.23]

If a Secretary of State decides that he wants to silence anti-vaxxers, the right way to go about it is to present a Bill to Parliament, have it debated and, if Parliament agrees, pass it into law. The structure envisaged by the White Paper would create a channel whereby an ad hoc Ministerial policy to silence a particular group or kind of speech could be framed as combating an online harm, pushed to the regulator then implemented by its online intermediary proxies. Such a scheme has democratic deficit hard baked into it.

Perhaps in recognition of this, the government is consulting on whether Parliament should play a role in developing or approving Ofweb’s Codes of Practice. That, however, smacks more of sticking plaster than cure.

Impermissible vagueness

Building a regulatory structure on a non-specific notion of harm is not a matter of mere ambiguity, where some word in an otherwise unimpeachable statute might mean one thing or another and the court has to decide which it is. It strays beyond ambiguity into vagueness and gives rise to rule of law issues.

The problem with vagueness was spelt out by the House of Lords in R v Rimmington, citing the US case of Grayned:

"Vagueness offends several important values … A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."

Whilst most often applied to criminal liability, the objection to vagueness is more fundamental than that. It is a constitutional principle that applies to the law generally. Lord Diplock referred to it in a 1975 civil case (Black-Clawson):

"The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it."

Certainty is a particular concern with a law that has consequences for individuals' speech. In the context of a social media duty of care the rule of law requires that users must be able to know with reasonable certainty in advance what of their speech is liable to be the subject of preventive or mitigating action by a platform operator subject to the duty of care.

If the duty of care is based on an impermissibly vague concept such as ‘harm’, then the legislation has a rule of law problem. It is not necessarily cured by empowering the regulator to clothe the skeleton with codes of practice and interpretations, for three reasons: 

First, impermissibly vague legislation does not provide a skeleton at all – more of a canvas on to which the regulator can paint at will; 

Second, if it is objectionable for the legislature to delegate basic policy matters to policemen, judges and juries it is unclear why it is any less objectionable to do so to a regulator; 

Third, regulator-made law is a moveable feast.

All power to the sheriff

From a rule of law perspective undefined harm ought not to take centre stage in legislation.

However if the very idea is to maximise the power and discretion of a regulator, then inherent vagueness in the legislation serves the purpose very well. The vaguer the remit, the more power is handed to the regulator to devise policy and make law.

John Humphrys, perhaps unwittingly, put his finger on it during the Today programme on 8 April 2019 (4:00 onwards). Joy Hyvarinen of Index on Censorship pointed out how broadly Ofcom had interpreted harm in its 2018 survey, to which John Humphrys retorted: “You deal with that by defining [harm] more specifically, surely". 

That would indeed be an improvement. But what interest would a government intent on creating a powerful regulator, not restricted to a static list of in-scope content and behaviour, have in cramping the regulator’s style with strict rules and carefully limited definitions of harm? In this scheme of things breadth and vagueness are not faults but a means to an end.

There is a precedent for this kind of approach in broadcast regulation. The Communications Act 2003 refers to 'offensive and harmful', makes no attempt to define them and leaves it to Ofcom to decide what they mean. Ofcom is charged with achieving the objective: 

“that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material”.

William Perrin and Professor Lorna Woods, whose work on duties of care has influenced the White Paper, say of the 2003 Act that: 

"competent regulators have had little difficulty in working out what harm means" [37]. 

They endorse Baroness Grender’s contribution to a House of Lords debate in November 2018, in which she asked: 

"Why did we understand what we meant by "harm" in 2003 but appear to ask what it is today?"

The answer is that in 2003 the legislators did not have to understand what the vague term 'harm' meant because they gave Ofcom the power to decide. It is no surprise if Ofcom has had little difficulty, since it is in reality not 'working out what harm means' but deciding on its own meanings. It is, in effect, performing a delegated legislative function.

Ofweb would be in the same position, effectively exercising a delegated power to decide what is and is not harmful.

Broadcast regulation is an exception from the norm that speech is governed only by the general law. Because of its origins in spectrum scarcity and the perceived power of the medium, it has been considered acceptable to impose stricter content rules and a discretionary style of regulation on broadcast, in addition to the general laws (defamation, obscenity and so on) that apply to all speech.

That does not, however, mean that a similar approach is appropriate for individual speech. Vagueness goes hand in hand with arbitrary exercise of power. If this government had set out to build a scaffold from which to hang individual online speech, it could hardly have done better.

The duty of care that isn’t

Lastly, it is notable that as far as can be discerned from the White Paper the proposed duty of care is not really a duty of care at all.

A duty of care properly so called is a legal duty owed to identifiable persons. They can claim damages if they suffer injury caused by a breach of the duty. Common law negligence and liability under the Occupiers’ Liability Act 1957 are examples. These are typically limited to personal injury and damage to physical property; and only rarely impose a duty on, say, an occupier, to prevent visitors injuring each other. An occupier owes no duty in respect of what visitors to the property say to each other.

The absence in the White Paper of any nexus between the duty of care and individual persons would allow Ofweb’s remit to be extended beyond injury to individuals and into the nebulous realm of harms to society. That, as discussed above, is what the White Paper proposes.

Occasionally a statute creates something that it calls a duty of care, but which in reality describes a duty owed to no-one in particular, breach of which is (for instance) a criminal offence.

An example is s.34 of the Environmental Protection Act 1990, which creates a statutory duty in respect of waste disposal. As would be expected of such a statute, s.34 is precise about the conduct that is in scope of the duty. In contrast, the White Paper proposes what is in effect a universal online ‘Behaving Badly’ law.

Even though the Secretary of State referred in a recent letter to the Society of Editors to “A duty of care between companies and their users”, the ‘duty of care’ described in the White Paper is something quite different from a duty of care properly so called.

The White Paper’s duty of care is a label applied to a regulatory framework that would give Ofweb discretion to decide what user communications and activities on the internet should be deemed harmful, and the power to enlist proxies such as social media companies to sniff and snuff them out, and to take action against an in scope company if it does not comply.

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.

[Added visualisation 24 May 2019. Amended 19 July 2019 to make clear that the regulator might be an existing or new body - see Consultation Q.10. Grammatical error corrected 1 March 2023.]

A Ten Point Rule of Law Test for a Social Media Duty of Care

All the signs are that the government will shortly propose a duty of care on social media platforms aimed at reducing the risk of harm to users.

DCMS Secretary of State Jeremy Wright wrote recently:

"A world in which harms offline are controlled but the same harms online aren’t is not sustainable now…". 

The House of Lords Communications Committee invoked a similar 'parity principle':

"The same level of protection must be provided online as offline."

Notwithstanding that the duty of care concept is framed as a transposition of offline duties of care to online, proposals for a social media duty of care will almost certainly go significantly beyond any comparable offline duty of care.

When we examine safety-related duties of care owed by operators of offline public spaces to their visitors, we find that they:

(a) are restricted to objectively ascertainable injury,

(b) rarely impose liability for what visitors do to each other,

(c) do not impose liability for what visitors say to each other. 

The social media duties of care that have been publicly discussed so far breach all three of these barriers. They relate to subjective harms and are about what users do and say to each other. Nor are they restricted to activities that are unlawful as between the users themselves.

The substantive merits and demerits of any proposed social media duty of care will no doubt be hotly debated. But the likely scope of a duty of care raises a prior rule of law issue. The more broadly a duty of care is framed, the greater the risk that it will stray into impermissible vagueness.

The rule of law objection to vagueness was spelt out by the House of Lords in R v Rimmington, citing the US case of Grayned:

"Vagueness offends several important values … A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."  

Whilst most often applied to criminal liability, the objection to vagueness is more fundamental than that. It is a constitutional principle that applies to the law generally. Lord Diplock referred to it in a 1975 civil case (Black-Clawson):

"The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it."

Certainty is a particular concern with a law that has consequences for individuals' speech. In the context of a social media duty of care the rule of law requires that users must be able to know with reasonable certainty in advance what of their speech is liable to be the subject of preventive or mitigating action by a platform operator subject to the duty of care.

With all this in mind, I propose a ten point rule of law test by which the government’s proposals, when they appear, may be evaluated. These tests are not about the merits or demerits of the content of any proposed duty of care as such, although of course how the scope and substance of any duty of care is defined will be central to the core rule of law questions of certainty and precision.

These tests are in the nature of a precondition: is the duty of care framed with sufficient certainty and precision to be acceptable as law, particularly bearing in mind potential consequences for individual speech?

It is, for instance, possible for scope to be both broad and clear. That would pass the rule of law test, but might still be objectionable on its merits. But if the scope does not surmount the rule of law threshold of certainty and precision it ought to fall at that first hurdle.

My proposed tests are whether there is sufficient certainty and precision as to:

1.    Which operators are and are not subject to the duty of care.

2.      To whom the duty of care is owed.

3.      What kinds of effect on a recipient will and will not be regarded as harmful.

4.      What speech or conduct by a user will and will not be taken to cause such harm.

5.      If risk to a hypothetical recipient of the speech or conduct in question is sufficient, how much risk suffices and what are the assumed characteristics of the notional recipient.

6.      Whether the risk of any particular harm has to be causally connected (and if so how closely) to the presence of some particular feature of the platform.

7.      What circumstances would trigger an operator's duty to take preventive or mitigating steps.

8.      What steps the duty of care would require the operator to take to prevent or mitigate harm (or a perceived risk of harm).

9.      How any steps required by the duty of care would affect users who would not be harmed by the speech or conduct in question.

10.   Whether a risk of collateral damage to lawful speech or conduct (and if so how great a risk of how extensive damage), would negate the duty of care.

These tests are framed in terms of harms to individuals. Some may object that ‘harm’ should be viewed collectively. From a rule of law perspective it should hardly need saying that constructs such as (for example) harm to society or harm to culture are hopelessly vague.

One likely riposte to objections of vagueness is that a regulator will be empowered to decide on the detailed rules. Indeed it will no doubt be argued that flexibility on the part of a regulator, given a set of high level principles to work with, is beneficial. There are at least two objections to that.

First, 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.

Second, if the vice of vagueness is potential for arbitrariness, then it is unclear how Parliament delegating policy matters to an independent regulator is any more acceptable than delegating them to a policeman, judge or jury. It compounds, rather than cures, the vice.

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.

A Lord Chamberlain for the internet? Thanks, but no thanks.

This summer marked the fiftieth anniversary of the Theatres Act 1968, the legislation that freed the theatres from the censorious hand of the Lord Chamberlain of Her Majesty’s Household. Thereafter theatres needed to concern themselves only with the general laws governing speech. In addition they were granted a public good defence to obscenity and immunity from common law offences against public morality.

The Theatres Act is celebrated as a landmark of enlightenment. Yet today we are on the verge of creating a Lord Chamberlain of the Internet. We won't call it that, of course. The Times, in its leader of 5 July 2018, came up with the faintly Orwellian "Ofnet". Speculation has recently renewed that the UK government is laying plans to create a social media regulator to tackle online harm. What form that might take, should it happen, we do not know. We will find out when the government produces a promised white paper.

When governments talk about regulating online platforms to prevent harm it takes no great leap to realise that we, the users, are the harm that they have in mind.

The statute book is full of legislation that restrains speech. Most, if not all, of this legislation applies online as well as offline. Some of it applies more strictly online than offline. These laws set boundaries: defamation, obscenity, intellectual property rights, terrorist content, revenge porn, harassment, incitement to racial and religious hatred and many others. Those boundaries represent a balance between freedom of speech and harm to others. It is for each of us to stay inside the boundaries, wherever they may be set. Within those boundaries we are free to say what we like, whatever someone in authority may think. Independent courts, applying principles, processes and presumptions designed to protect freedom of speech, adjudge alleged infractions according to clear, certain laws enacted by Parliament.

But much of the current discussion centres on something quite different: regulation by regulator. This model concentrates discretionary power in a state agency. In the UK the model is to a large extent the legacy of the 1980s Thatcher government, which started the OF trend by creating OFTEL (as it then was) to regulate the newly liberalised telecommunications market. A powerful regulator, operating flexibly within broadly stated policy goals, can be rule-maker, judge and enforcer all rolled into one.

That may be a long-established model for economic regulation of telecommunications competition, energy markets and the like. But when regulation by regulator trespasses into the territory of speech it takes on a different cast. Discretion, flexibility and nimbleness are vices, not virtues, where rules governing speech are concerned. The rule of law demands that a law governing speech be general in the sense that it applies to all, but precise about what it prohibits. Regulation by regulator is the converse: targeted at a specific group, but laying down only broadly stated goals that the regulator should seek to achieve.
As OFCOM puts it in its recent discussion paper ‘Addressing Harmful Online Content’: “What has worked in a broadcasting context is having a set of objectives laid down by Parliament in statute, underpinned by detailed regulatory guidance designed to evolve over time. Changes to the regulatory requirements are informed by public consultation.”

Where exactly the limits on freedom of speech should lie is a matter of intense, perpetual, debate. It is for Parliament to decide, after due consideration, whether to move the boundaries. It is anathema to both freedom of speech and the rule of law for Parliament to delegate to a regulator the power to set limits on individual speech.

It becomes worse when a document like the government’s Internet Safety Strategy Green Paper takes aim at subjective notions of social harm and unacceptability rather than strict legality and illegality according to the law. ‘Safety’ readily becomes an all-purpose banner under which to proceed against nebulous categories of speech which the government dislikes but cannot adequately define.

Also troubling is the frequently erected straw man that the internet is unregulated. This blurs the vital distinction between the general law and regulation by regulator. Participants in the debate are prone to debate regulation as if the general law did not exist.

Occasionally the difference is acknowledged, but not necessarily as a virtue. The OFCOM discussion paper observes that by contrast with broadcast services subject to long established regulation, some newer online services are ‘subject to little or no regulation beyond the general law’, as if the general law were a mere jumping-off point for further regulation rather than the democratically established standard for individual speech.

OFCOM goes on that this state of affairs was “not by design, but the outcome of an evolving system”. However, a deliberate decision was taken with the Communications Act 2003 to exclude OFCOM’s jurisdiction over internet content in favour of the general law alone.

Moving away from individual speech, the OFCOM paper characterises the fact that online newspapers are not subject to the impartiality requirements that apply to broadcasters as an inconsistency. Different, yes. Inconsistent, no.

Periodically since the 1990s the idea has surfaced that as a result of communications convergence broadcast regulation should, for consistency, apply to the internet. With the advent of video over broadband aspects of the internet started to bear a superficial resemblance to television. The pictures were moving, send for the TV regulator.

EU legislators have been especially prone to this non-sequitur. They are currently enacting a revision of the Audiovisual Media Services Directive that will require a regulator to exercise some supervisory powers over video sharing platforms.

However broadcast regulation, not the rule of general law, is the exception to the norm. It is one thing for a body like OFCOM to act as broadcast regulator, reflecting television’s historic roots in spectrum scarcity and Reithian paternalism. Even that regime is looking more and more anachronistic as TV becomes less and less TV-like. It is quite another to set up a regulator with power to affect individual speech. And it is no improvement if the task of the regulator is framed as setting rules about the platforms’ rules. The result is the same: discretionary control exercised by a state entity (however independent of the government it may be) over users’ speech, via rules that Parliament has not specifically legislated.

It is true, as the OFCOM discussion paper notes, that the line between broadcast and non-broadcast regulation means that the same content can be subject to different rules depending on how it is accessed. If that is thought to be anomalous, it is a small price to pay for keeping regulation by regulator out of areas in which it should not tread.

The House of Commons Media Culture and Sport Committee, in its July 2018 interim report on fake news, recommended that the government should use OFCOM’s broadcast regulation powers, “including rules relating to accuracy and impartiality”, as “a basis for setting standards for online content”. It is perhaps testament to the loss of perspective that the internet routinely engenders that a Parliamentary Committee could, in all seriousness, suggest that accuracy and impartiality rules should be applied to the posts and tweets of individual social media users.

Setting regulatory standards for content means imposing more restrictive rules than the general law. That is the regulator’s raison d’etre. But the notion that a stricter standard is a higher standard is problematic when applied to what we say. Consider the frequency with which environmental metaphors – toxic speech, polluted discourse – are now applied to online speech. For an environmental regulator, cleaner may well be better. The same is not true of speech. Offensive or controversial words are not akin to oil washed up on the seashore or chemicals discharged into a river. Objectively ascertainable physical damage caused by an oil spill bears no relation to a human being evaluating and reacting to the merits and demerits of what people say and write.

If we go further and transpose the environmental precautionary principle to speech we then have prior restraint – the opposite of the presumption against prior restraint that has long been regarded as a bulwark of freedom of expression. All the more surprising then that The Times, in its July Ofnet editorial, should complain of the internet that “by the time police and prosecutors are involved the damage has already been done”. That is an invitation to step in and exercise prior restraint.

As an aside, do the press really think that Ofnet would not before long be knocking on their doors to discuss their online editions? That is what happened when ATVOD tried to apply the Audiovisual Media Services Directive to online newspapers that incorporated video. Ironically it was The Times' sister paper, the Sun, that successfully challenged that attempt.

The OFCOM discussion paper observes that there are “reasons to be cautious over whether [the broadcast regime] could be exported wholesale to the internet”. Those reasons include that “expectations of protection or [sic] freedom of expression relating to conversations between individuals may be very different from those relating to content published by organisations”.

US district judge Dalzell said in 1996: “As the most participatory form of mass speech yet developed, the internet deserves the highest protection from governmental intrusion”. The opposite view now seems to be gaining ground: that we individuals are not to be trusted with the power of public speech, that it was a mistake ever to allow anyone to speak or write online without the moderating influence of an editor, and that by hook or by crook the internet genie must be stuffed back in its bottle.

Regulation by regulator, applied to speech, harks back to the bad old days of the Lord Chamberlain and theatres. In a free and open society we do not appoint a Lord Chamberlain of the Internet – even one appointed by Parliament rather than by the Queen - to tell us what we can and cannot say online, whether directly or via the proxy of online intermediaries. The boundaries are rightly set by general laws.

We can of course debate what those laws should be. We can argue about whether intermediary liability laws are appropriately set. We can consider what tortious duties of care apply to online intermediaries and whether those are correctly scoped. We can debate the dividing line between words and conduct. We can discuss the vexed question of an internet that is both reasonably safe for children and fit for grown-ups. We can think about better ways of enforcing laws and providing victims of unlawful behaviour with remedies. These are matters for public debate and for Parliament and the general law within the framework of fundamental rights. None of this requires regulation by regulator. Quite the opposite.

Nor is it appropriate to frame these matters of debate as (in the words of The Times) “an opportunity to impose the rule of law on a legal wilderness where civic instincts have been suspended in favour of unthinking libertarianism for too long”. People who use the internet, like people everywhere, are subject to the rule of law. The many UK internet users who have ended up before the courts, both civil and criminal, are testament to that. Disagreement with the substantive content of the law does not mean that there is a legal vacuum.

What we should be doing is take a hard look at what laws do and don’t apply online (the Law Commission is already looking at social media offences), revise those laws if need be and then look at how they can most appropriately be enforced.

This would involve looking at areas that it is tempting for a government to avoid, such as access to justice. How can we give people quick and easy access to independent tribunals with legitimacy to make decisions about online illegality? The current court system cannot provide that service at scale, and it is quintessentially a job for government rather than private actors. More controversially, is there room for greater use of powers such as ‘internet ASBOs’ to target the worst perpetrators of online illegality? The existing law contains these powers, but they seem to be little used.

It is hard not to think that an internet regulator would be a politically expedient means of avoiding hard questions about how the law should apply to people’s behaviour on the internet. Shifting the problem on to the desk of an Ofnet might look like a convenient solution. It would certainly enable a government to proclaim to the electorate that it had done something about the internet. But that would cast aside many years of principled recognition that individual speech should be governed by the rule of law, not the hand of a regulator.

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.

Regulating the internet – intermediaries to perpetrators

Nearly twenty five years after the advent of the Web, and longer since the birth of the internet, we still hear demands that the internet should be regulated - for all the world as if people who use the internet were not already subject to the law. The May 2017 Conservative manifesto erected a towering straw man: “Some people say that it is not for government to regulate when it comes to technology and the internet. We disagree.”  The straw man even found its way into the title of the current House of Lords Communications Committee inquiry: "The Internet: to regulate or not to regulate?".

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.

Such niceties can be trampled underfoot in the rush to do something about the internet. Existing generally applicable laws are readily overlooked amid the clamour to tame the internet Wild West, purge illegal, harmful and unacceptable content, leave no safe spaces for malefactors and bring order to the lawless internet.

A recent article by David Anderson Q.C. asked the question 'Who governs the Internet?' and spoke of 'subjecting the tech colossi to the rule of law'. The only acceptable answer to the ‘who governs?’ question is certainly 'the law'. We would at our peril confer the title and powers of Governor of the Internet on a politician, civil servant, government agency or regulator. But as to the rule of law, we should not confuse the existence of laws with disagreement about what, substantively, those laws should consist of. Bookshops and magazine distributors operate, for defamation, under a liability system with some similarities to the hosting regime under the Electronic Commerce Directive. No-one has, or one hopes, would suggest that as a consequence they are not subject to the rule of law.

It is one thing to identify how not to regulate, but it would be foolish to deny that there are real concerns about some of the behaviour that is to be found online. The government is currently working towards a White Paper setting out proposals for legislation to tackle “a range of both legal and illegal harms, from cyberbullying to online child sexual exploitation”. What is to be done about harassment, bullying and other abusive behaviour that is such a significant contributor to the current furore?

Putting aside the debate about intermediary liability and obligations, we could ask whether we are making good enough use of the existing statute book to target perpetrators. The criminal law exists, but can be seen as a blunt instrument. It was for good reason that the Director of Public Prosecutions issued lengthy prosecutorial guidelines for social media offences.

Occasionally the idea of an ‘Internet ASBO’ has been floated. Three years ago a report of the All-Party Parliamentary Inquiry into Antisemitism recommended, adopting an analogy with sexual offences prevention orders, that the Crown Prosecution Service should undertake a “review to examine the applicability of prevention orders to hate crime offences and if appropriate, take steps to implement them.” 

A possible alternative, however, may lie elsewhere on the statute book. The Anti-Social Behaviour, Crime and Policing Act 2014 contains a procedure for some authorities to obtain a civil anti-social behaviour injunction (ASBI) against someone who has engaged or threatens to engage in anti-social behaviour, meaning “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”. That succintly describes the kind of online behaviour complained of.

Nothing in the legislation restricts an ASBI to offline activities. Indeed over 10 years ago The Daily Telegraph reported an 'internet ASBO' made under predecessor legislation against a 17 year old who had been posting material on the social media platform Bebo, banning him from publishing material that was threatening or abusive and promoted criminal activity.  

ASBIs raise difficult questions of how they should be framed and of proportionality, and there may be legitimate concerns about the broad terms in which anti-social behaviour is defined. Nevertheless the courts to which applications are made have the societal and institutional legitimacy, as well as the experience and capability, to weigh such factors.

The Home Office Statutory Guidance on the use of the 2014 Act powers (revised in December 2017) makes no mention of their use in relation to online behaviour.  That could perhaps usefully be revisited. Another possibility might be to explore extending the ability to apply for an ASBI beyond the authorities, for instance to some voluntary organisations. 

Whilst the debate about how to regulate internet activities and the role of intermediaries is not about to go away, we should not let that detract from the importance of focusing on remedies against the perpetrators themselves.