Policy primer; momentum across Europe for wide-ranging Internet regulation
Policy Briefing, July 2019
Background
Governments around the world are grappling with Internet Regulation – a topic which touches industrial policy, taxation, innovation, digitalization and artificial intelligence, consumer protection and fundamental rights.
The new European Commission will review rules about corporate liability for online activities – as well as seeking to regulate artificial intelligence, so updating Europe’s approach to issues like terrorist content, hate speech, cyberbullying and fake news by 2025.
The UK Government hopes to bring forward legislation in 2020 – so establishing a new regulatory framework by 2022. But its White Paper gives a mixed message to companies, proposing both a flexible “duty of care” and prescriptive codes of practice.
Duty of care
Carnegie UK Trust have been promoting the proposals for a statutory duty of care, based on 18 months of detailed work by Professor Lorna Woods and William Perrin [2]. The approach was adopted in recent UK Government proposals [3], but Woods and Perrin are concerned that proposed, detailed codes of practice sit awkwardly with their idea of a responsive, risk-based regime. Consumer group Which? says the scope of application is too narrow, missing the opportunity to address harms like online sales of unsafe products and fake reviews [4].
By contrast the Global Network Initiative (GNI), an industry group, says the proposal is “both too broad and unnecessarily vague” [5]. They say steps should be taken to narrow and clarify the scope in order to protect freedom of expression online, promote innovation and competition, and provide coherence and certainty for business.
Vast scale and scope
The vast scale of the online environment is challenging. Internet services are pervasive and so are the associated problems. A recent report for the French Secretary of State for Digital Affairs proposes a European vision focused on active supervision of the companies whose services have the greatest reach and impact [6]. Smaller companies could be allowed an initial presumption of compliance in order to better focus harm reduction efforts and avoid entrenching market dominance or stifling innovation [7].
Doteveryone, a think tank, advocates a similar idea: “The regulator should designate some ‘systemically important’ online services… [who will] have stronger obligations under the duty of care. This will ensure the regulator acts proportionately…” [8].
Procedural accountability
Communications Chambers [9] identified the need for new institutional arrangements to accommodate platforms’ role in governing online markets. Their proposal: ‘procedural accountability’, distinguishing these systemic obligations from editorial obligations typically ascribed to broadcasters and publishers. Platforms would be held to account for the ways in which decisions are taken about which content is promoted to whom, which is investigated, and which is removed.
Procedural accountability gives companies freedom to develop systems that are appropriate for their environment, scale and risk of harm. Systems could be iterated rapidly in response to changing circumstances and evidence. A regulator would validate the effectiveness of platforms’ policies and procedures rather than prescribing particular solutions.
Regulation and self-regulation
Detailed draft codes and the suggestion that the Government would have direct control over them raise doubts about the independence of the regulator. The Government could appoint a (shadow) regulator to take the work forward from here, working in consultation with relevant parties.
Both the children’s charities [10] and Mobile UK [11] highlight the ongoing role of self-regulation. Existing and effective self-regulation such as the Code of Practice for the self-regulation of content on mobile [12] and the Internet Watch Foundation [13] should be recognised and respected, not collapsed into or taken over by a new or expanded regulator.
Ethics and purpose
Prof. Christopher Hodges of the University of Oxford’s Centre for Socio-Legal Studies [14] highlights growing evidence that the behaviour of commercial entities is affected by (a) their internal cultures [15] and (b) their business models. [16]
This being the case, he argues, the UK Government’s stated strategy of creating a culture of transparency, trust and accountability could be better served by supporting and requiring ethical business cultures (through the Ethical Business Regulation model) and requiring appropriate business models (that emphasise the social purpose of an organisation).
It is in the interests of businesses, their owners, and society for progressive companies to act now to anticipate and shape wide-ranging Internet regulation, and to advance digital responsibility.
Our View:
Better, not less, self-regulation is needed so industry adopts best practice rapidly as services and products develop. See our full submission to UK Government here: http://bit.ly/2RMpRMf.
Source:
[1] O O’Neill (2002) A Question of Trust p72-73
[2] Carnegie UK Trust: Harm Reduction in Social Media
[4] Which? Response to the Online Harms White Paper http://bit.ly/2xu5ome
[5] GNI: http://bit.ly/328UBMv p1
[6] numerique.gouv.fr: http://bit.ly/2wFbKig p20
[7] “Six months in, Europe’s privacy revolution favors Google, Facebook”, Politico, 23rd November 2018: https://politi.co/2J9ot2B
[8] Doteveryone, http://bit.ly/2G304uN
[9] Mark Bunting, Communications Chambers: http://bit.ly/2Xl2mLs
[10] Children’s Charities’ Coalition on Internet Safety: http://bit.ly/2Jm82Qq p7
[11] Mobile UK: http://bit.ly/2JjzoH0
[12] Mobile UK: http://bit.ly/2YAIu8R
[14] https://www.law.ox.ac.uk/peopl...
[15] C Hodges and R Steinholtz, Ethical Business Practice and Regulation: A Behavioural and Values-Based Approach to Compliance and Enforcement (Hart, 2017).
[16] C Mayer, Prosperity (Oxford University Press, 2018).
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