OK, Mr Zuckerberg - you want regulating
OK, Mr Zuckerberg - you want regulating? Be careful what you wish for as the UK Government - finally - rolls out its long-promised White Paper on Online Harms, with politicians clambering over themselves to show who’s going to be the toughest on clamping down on tech giants.
A joint document from the UK Department of Digital, Culture, Media and Sport and the Home Office, the Online Harms White Paper - the first step towards introducing new legislation - proposes:
- The creation of an independent regulator to produce a ‘code of practice’ for social networks and internet firms. This may be a new body or an existing organization, such as Ofcom, given new responsibilities.
- Said regulator should have the power to impose fines on companies that breach the ‘code of practice’.
- It should also have the power to fine company executives at the top of firms that break the proposed new laws.
- The regulator should be funded by the tech industry, not the taxpayer.
- Social media firms will be required to file annual reports disclosing how much harmful material has been found on their platforms.
So for, so headline grabbing - and at a time when any topic of conversation other than Brexit would be welcome, not to mention an imminent Conservative party leadership campaign or even a possible General Election, there’s an almost embarrassing scramble by politicians to attach their spoor to this Facebook-taming.
So we have Culture Secretary Jeremy Wright declaring:
The era of self-regulation for online companies is over.
Meanwhile Home Secretary Sajid Javid also waves a big stick:
The tech giants and social media companies have a moral duty to protect the young people they profit from…That is why we are forcing these firms to clean up their act once and for all. I made it my mission to protect our young people – and we are now delivering on that promise.
Not to be left out, the Prime Minister Theresa May chips in:
For too long these companies have not done enough to protect users, especially children and young people, from harmful content. That is not good enough, and it is time to do things differently.
But beyond the soundbites, does this White Paper really have any teeth?
An immediate problem is one of vagueness and broad brush strokes. The danger with this sort of regulatory push is that it’s driven too much by a ‘something must be done’ mindset. There’s a concerning line in the formal announcement of the White Paper that among the top three takeaways judged worth highlighting is that the measures are “the first of their kind in the world in the fight to make the internet a safer place”.
That’s all very well in a ‘Britain leads the way’ sort of political rallying cry, but what does it actually mean in practice? Assuming that the White Paper translates into legislation, it will have a UK scope. So enforcement and all the other requirements will have to take place at national level and will be heavily dependent on the local arms of the social network providers choosing to co-operate.
The European Union has its own regulatory ambitions - and its own political leaders in search of some Facebook-bashing credentials. The UK legislation might mirror whatever Brussels comes up with. On the other hand, it might not. With Brexit negotiations still in chaos at time of writing, what chance the UK ending up on its own legislatively? And what chance the social media firms taking that into account, not to mention how much pre-Brexit Britain has been trying to coax badly-needed inward investment from those very firms?
Still, the Special Relationship with America will mean that the UK will get support from the White House, no? Er, no - not this particular White House. By the time this White Paper gets close to entering law, the US Presidential Election campaigning will be well underway. With Democratic bidder Elizabeth Warren having made regulating social media firms a key plank of her campaign bid, the current occupant of the Oval Office isn’t likely to give succour to that idea. Anyway, as he sets out Make America Great Again (Again), foreign government’s attempts to fine America tech firms isn’t going to play well with the Fox and Friends heartlands. Keep your noses out, is a more likely early morning Twitter reaction.
Then there’s the vagueness of much of the White Paper. There are some ‘Harms with a clear legal definition’ cited, such as terrorist content and activity or hate crime. Then there are ‘Harms with a less clear legal definition’, such as extremist content and activity and cyber-bullying.
What’s not clear, at this stage, is what’s the difference between, for example, extremist content and hate crimes? There are people in the UK currently protesting about children being given sex education that includes acknowledging the existence of LGBTQ people. Most of us, myself included, would consider the rhetoric being used by some of those protestors as both extremist and a hate crime, but they’re still allowed to stand outside a school and shout the slogans. So presumably they’re OK to publish them on Facebook or Twitter, even under the new legislative proposals?
To which question, the political response during the forthcoming 12 week consultation period will doubtless be that such definitions will be up to the new regulator, in whatever form that manifests itself. That looks mightily like a poisoned chalice on offer. As Vinous Ali, Head of Policy at technology trade association techUK, puts it:
A regulator, whether new or existing, will not thank anyone for being handed a vague remit. It is vital that the Government is clear about what it wants to achieve and the trade-offs necessary to do it. That means providing clear definitions of online harms and setting out how difficult boundary issues should be addressed.
Delivering this framework will not be easy and won’t be achieved if difficult problems and trade-offs are ignored. Some of the key pillars of the Government's approach remain too vague. It is vital that the new framework is effective, proportionate and predictable. Clear legal definitions that allow companies in scope to understand the law and therefore act quickly and with confidence will be key to the success of the new system.
Enforcement remains another concern - and one that once again is very vague. Doing the rounds of media appearances this morning, Culture Secretary Wright is hand-waving towards the General Data Protection Regulation (GDPR) - a piece of EU legislation that the UK spent a long time opposing, incidentally - as a good example of how a penalty system might work. In other words, he doesn’t know how the fines system would work in practice, how big the financial penalties would be or how they’d be enforced.
Of course, the argument can be made - and as of 11am on Monday was increasingly being made by Wright under questioning from journalists - that the White Paper is not a finished document and lots can be added, removed or amended. But the vagueness evident in what is being positioned as such a vital piece of world-leading legislation remains concerning. There’s an air of being seen to wield a big stick in the direction of Zuckerberg et al without much thought as to how that would work. As techUK’s Ali observes:
Director liability and ISP blocking are both heavy handed approaches. By going down this route the UK risks setting precedents that will be abused by less open and less democratic jurisdictions. The UK Government should be mindful that governments and investors around the world are watching closely how it handles these issues. Getting the balance right between effective protections and the protection of fundamental rights will be essential.
That last point is one we’ll hear a lot about over the next 12 weeks - and so we damn well should. Who gets to decide what’s freedom of speech and what’s not? Who says what’s Fake News and what isn’t? Back to the White House and it’s evident that Fake News is anything that doesn’t fit the worldview from the Oval Office window. That’s a definition that’s spread all too readily to other parts of the free world, let alone repressive regimes around the globe.
This White Paper is curate’s egg. There are some good intentions, but there are enormous risks. The scandals of recent times clearly fuel the ‘something must be done’ mindset, but there are other agendas in play as well, both political and commercial, when it comes to ‘taming’ the internet.
There’s also the question of timing. We know that bad legislation is worse than no legislation. UK politics has never been in a more febrile state than today and there’s no indication at this point that it will be in any better a state in 12 weeks time when the consultation period ends. The UK might be in the EU. It might be out. There might be a new Prime Minister. There might be an entirely new government, Or the country might still be traveling up the proverbial creek without a paddle. This is no time to rush into legislation on such a crucial matter without the headspace for the deepest of national conversations.