Analysis The UK government has started the legislative process for new online content laws that would make internet giants like Google and Facebook liable for the material that appears on their platforms and establish a new regulator to oversee them.
Announcing the release of a white paper (PDF) on "Online Harms," Brit home secretary Sajid Javid decided to make it a personal issue: "I'm giving tech companies a message that they cannot ignore," he said. "I warned you and you didn't do enough. It's no longer a matter of choice. I will accept nothing else."
Then, further reflecting the egocentric and overly aggressive communication that has become a norm online, Javid went on: "We cannot allow the leaders of some of the tech companies to simply look the other way and deny their share of responsibility even as content on their platforms incites criminality, abuse and even murder."
The UK's digital secretary Jeremy Wright was more concise and less personal: "The era of self-regulation for online companies is over."
The white paper contains several key proposals:
- It would make online platforms, including social media sites like Facebook, online forums like Reddit, messaging services like WhatsApp and search engines like Google responsible for the content that appears on their sites and through their services.
- Those companies would be expected to exercise a "duty of care" and take "reasonable steps" to tackle both illegal and harmful content. There would tiers of content, with tougher rules around content like child abuse images and terrorism.
- A new, independent regulator would be created to enforce the new policies and would have the power to fine companies as well as block sites and even extend personally liability to senior executives if they fail to follow the rules.
- Users would be able to file complaints and companies would be obligated to provide transparency reports.
This is a white paper and the start of the process and so the eternal catchall rule applies: the devil is in the detail. But this being the internet the response has, of course, largely comprised of people yelling about how awful it is and accusing everyone they don't agree with of being stupid.
Here then is an unreasonably reasonable rundown of the issues surrounding the white paper and the government's plan.
This was inevitable
For years, Europe has been threatening to pass new laws in order to get online platforms to act more restrictively when it comes to the content they host.
Since all the large platforms are based in the US, where the First Amendment provides broad protections and has resulted in a cultural acceptance of unpleasant content, European-style protections were never going to be imposed voluntarily. Legislation was inevitable.
And that is before you consider the companies' business models that are naturally skewed toward driving as much user engagement and content sharing as possible.
Online content is a grey area. Which is why laws are needed
The internet is full of people who appear to have discovered policy-making for the first time. Most laws exist in order to try to push the spectrum of greys that make up our shared existence into a series of actionable brackets.
There is no such thing as a perfect law, but there are good laws and bad laws (and sometimes good laws slowly become bad laws). The key is try to get as far toward a good law as possible, and in that respect this white paper is not a bad start point. It:
- Makes the case for why new laws are needed.
- Recognizes the reality that there are different categories of content that need different rules.
- Recognizes that there needs to be flexibility over what is considered harmful and so proposes a specialist regulator to oversee that process, rather than attempt to write concrete laws drawing lines around content.
- Recognizes that the only way to force US companies to respond in the way they wish is to counteract the financial drive that creates most of the problems in the first place: through fines and the threat to both block a service and to hold individuals legally liable.
That is a good structure to start with. And it includes some aspects that appear designed to be bargained away. For example, we'd be very surprised if the idea of finding individuals executives personally liable make it through the legislative process; it will likely be removed at a critical negotiating point.
The tough areas
The most difficult aspect comes, of course, in identifying what sort of content fits in what sort of bucket. And the next most important issue is establishing how the new regulator is set up, who is put in charge, and how its policy-making processes are designed and function once the spotlight of interest has moved on.
How do you establish what content is "harmful"? What kind of harm, and to whom, and how do you measure it? How do you balance free expression with restrictions, or a dial-down on content?
What is an appropriate punishment for companies failing to downgrade or remove content? How does anyone get a grasp of the size of the problem? How do you address the fact that some content will be mislabeled?
How do you stop a regulator from becoming all-powerful? How do you build the right culture within such a regulator? How do you make it powerful enough to be effective but not so much that it doesn't have to listen to people?
These are difficult questions to answer but they do need an answer: simply pointing to their complexity and arguing that nothing can be done is to ignore the entire concept of governance and policymaking.
The critical aspect of consultation
The government has opened a 12-week consultation period on the white paper and has included 18 questions within the white paper (published in full in an annex to the document) for which it wants responses. It has a structured online form for those responses.
Notably, the paper states: "The UK remains committed to a multi-stakeholder model of internet governance as the best way to ensure a free, open and secure internet. All stakeholders from industry, civil society and government have a responsibility to help address legitimate online harms."
Which is great in theory but governments have a tendency to promise multi-stakeholderism and then abandon it as soon as it strays too far from their traditional decision-making processes, especially when the process starts taking too long or gets bogged down.
Overall, we would give the UK government a six out of 10 for the proposed structure. The white paper maintains a traditional approach of asking questions that make sense to policymakers, but in so doing effectively ignores that fact that there will be widespread interest in the topic. An example:
Question 5: Are proposals for the online platforms and services in scope of the regulatory framework a suitable basis for an effective and proportionate approach?
This approach, while helping to form the basis of a decent policy making process, effectively blocks broader public input and also provides an opportunity for groups on both sides of the debate to stir up antipathy and promote misleading campaigns, all of which will create a huge amount of angry background noise that makes policy making more difficult.
If the UK government offered a series of clear, concise and immediately understandable questions with clear choices, it would be able to direct general public attention to those and build a solid basis to move forward.
The current questions hide the most contentious topics, and the white paper shies away from addressing what will be people's biggest concerns head on. For example, it ignores the reality that the government wants content that is actually legal to be limited in exposure.
There's nothing wrong with that and it is at the core of the problem. Because Facebook, Google et al have built systems that promote the most widely shared and viewed content, they often find themselves actively pushing the most controversial content. That balance has to change. Why does it have to change? Because a majority of people don't like it and that's how the world works.
But that is, of course, very different from the angry claims that any legislation is a form of censorship. The content, so long as it is legal, can remain. But users would need to go to more trouble to locate it, rather than have it appear automatically in their feeds.
It would be helpful if the government were to address this reality honestly rather than hide behind carefully constructed wording, especially when we can expect significant public attention on this topic.
The other main problem is that the 12-week window for responding may or may not be long enough, depending on what the government intends to do with those responses.
If it plans to use the white paper to draw up more refined policies and then go back to the public for further feedback, 12 weeks is fine. If this process is the last one where the public will be able to easily make its views known before it disappears into the corridors of powers, lined with lobbyists, then it is woefully short.
And, we note, while the white paper says it want to talk with "stakeholders from industry, civil society and government" it doesn't go beyond that. If it published a list of all the organizations it will actively seek input from, that could assuage concerns that the entire process will be driven by the personal biases of a few politicians rather than a broader review and debate about what to do about harmful online content.
The home secretary has already flagged himself as a problem by taking such a personal lead on such a hugely important societal topic. "I warned you and you didn't do enough," he told the big tech companies indirectly through a press conference. "It's no longer a matter of choice. I will accept nothing else."
Mate, it ain't about you.
If you wish to respond – and you should – the online feedback form structured around the 18 questions is likely to be the most effective place. But writing to your MP and outlining precisely what changes you would want to see to the process itself can be effective. They are probably all itching to have a break from Brexit and do some legislative work. ®