Online Harms White Paper

Written Question, answered on 24 March 2021

Baroness Grender Liberal Democrat Life peer Lords

To ask Her Majesty's Government which commercial pornography companies will be in scope of the Online Safety Bill; and whether commercial pornography websites which

1. do not host user-generated content, or

2. allow private user communication, will also be in scope.

Baroness Barran Conservative

The government is committed to ensuring children are protected from accessing online pornography through the new online safety framework. Where pornography sites host user-generated content or facilitate online user interaction such as video and image sharing, commenting and live streaming, they will be subject to the new duty of care. Commercial pornography sites which allow private user to user communication will be in scope. Where commercial pornography sites do not have user-generated functionality they will not be in scope. The online safety regime will capture both the most visited pornography sites and pornography on social media, therefore covering the majority of sites where children are most likely to be exposed to pornography.

We expect companies to use age assurance or age verification technologies to prevent children from accessing services which pose the highest risk of harm to children, such as online pornography. We are working closely with stakeholders across industry to establish the right conditions for the market to deliver age assurance and age verification technical solutions ahead of the legislative requirements coming into force.

Campaigners for the revival of deeply flawed and one sided age verification for porn scheme have been continuing their efforts to revive it ever since it was abandoned by the Government in October 2019.

The Government was asked about the possibility of restoring it in January 2021 in the House of Commons. Caroline Dinenage responded for the government:

The Government announced in October 2019 that it will not commence the age verification provisions of Part 3 of the Digital Economy Act 2017 and instead deliver these protections through our wider online harms regulatory proposals.

Under our online harms proposals, we expect companies to use age assurance or age verification technologies to prevent children from accessing services which pose the highest risk of harm to children, such as online pornography. The online harms regime will capture both the most visited pornography sites and pornography on social media, therefore covering the vast majority of sites where children are most likely to be exposed to pornography. Taken together we expect this to bring into scope more online pornography currently accessible to children than would have been covered by the narrower scope of the Digital Economy Act.

We would encourage companies to take steps ahead of the legislation to protect children from harmful and age inappropriate content online, including online pornography. We are working closely with stakeholders across industry to establish the right conditions for the market to deliver age assurance and age verification technical solutions ahead of the legislative requirements coming into force.

In addition, Regulations transposing the revised Audiovisual Media Services Directive came into force on 1 November 2020 which require UK-established video sharing platforms to take appropriate measures to protect minors from harmful content. The Regulations require that the most harmful content is subject to the strongest protections, such as age assurance or more technical measures. Ofcom, as the regulatory authority, may take robust enforcement action against video sharing platforms which do not adopt appropriate measures.

Now during the passage of the Domestic Abuse in the House of Lords, Floella Benjamin attempted to revive the age verification requirement by proposing the following amendment:

Insert the following new Clause --

Impact of online pornography on domestic abuse

(1) Within three months of the day on which this Act is passed, the Secretary of State must commission a person appointed by the Secretary of State to investigate the impact of access to online pornography by children on domestic abuse.

(2) Within three months of their appointment, the appointed person must publish a report on the investigation which may include recommendations for the Secretary of State.

(3) As part of the investigation, the appointed person must consider the extent to which the implementation of Part 3 of the Digital Economy Act 2017 (online pornography) would prevent domestic abuse, and may make recommendations to the Secretary of State accordingly.

(4) Within three months of receiving the report, the Secretary of State must publish a response to the recommendations of the appointed person.

(5) If the appointed person recommends that Part 3 of the Digital Economy Act 2017 should be commenced, the Secretary of State must appoint a day for the coming into force of that Part under section 118(6) of the Act within the timeframe recommended by the appointed person.

Member's explanatory statement

This amendment would require an investigation into any link between online pornography and domestic abuse with a view to implementing recommendations to bring into effect the age verification regime in the Digital Economy Act 2017 as a means of preventing domestic abuse.

Floella Benjamin made a long speech supporting the censorship measure and was supported by a number of peers. Of course they all argued only from the 'think of the children' side of the argument and not one of them mentioned trashed adult businesses and the risk to porn viewers of being outed, scammed, blackmailed etc.

See Floella Benjamin's speech from hansard.parliament.uk

Digital Secretary Oliver Dowden and Home Secretary Priti Patel have announced the government's final decisions on new internet censorships laws.

• New rules to be introduced for nearly all tech firms that allow users to post their own content or interact

• Firms failing to protect people face fines of up to ten per cent of turnover or the blocking of their sites and the government will reserve the power for senior managers to be held liable

• Popular platforms to be held responsible for tackling both legal and illegal harms

• All platforms will have a duty of care to protect children using their services

• Laws will not affect articles and comments sections on news websites, and there will be additional measures to protect free speech

The full government response to the Online Harms White Paper consultation sets out how the proposed legal duty of care on online companies will work in practice and gives them new responsibilities towards their users. The safety of children is at the heart of the measures.

Social media sites, websites, apps and other services which host user-generated content or allow people to talk to others online will need to remove and limit the spread of illegal content such as child sexual abuse, terrorist material and suicide content. The Government is also progressing work with the Law Commission on whether the promotion of self harm should be made illegal.

Tech platforms will need to do far more to protect children from being exposed to harmful content or activity such as grooming, bullying and pornography. This will help make sure future generations enjoy the full benefits of the internet with better protections in place to reduce the risk of harm.

The most popular social media sites, with the largest audiences and high-risk features, will need to go further by setting and enforcing clear terms and conditions which explicitly state how they will handle content which is legal but could cause significant physical or psychological harm to adults. This includes dangerous disinformation and misinformation about coronavirus vaccines, and will help bridge the gap between what companies say they do and what happens in practice.

Ofcom is now confirmed as the regulator with the power to fine companies failing in their duty of care up to £18 million or ten per cent of annual global turnover, whichever is higher. It will have the power to block non-compliant services from being accessed in the UK.

The legislation includes provisions to impose criminal sanctions on senior managers. The government will not hesitate to bring these powers into force should companies fail to take the new rules seriously - for example, if they do not respond fully, accurately and in a timely manner to information requests from Ofcom. This power would be introduced by Parliament via secondary legislation, and reserving the power to compel compliance follows similar approaches in other sectors such as financial services regulation.

The government plans to bring the laws forward in an Online Safety Bill next year and set the global standard for proportionate yet effective regulation. This will safeguard people's rights online and empower adult users to keep themselves safe while preventing companies arbitrarily removing content. It will defend freedom of expression and the invaluable role of a free press, while driving a new wave of digital growth by building trust in technology businesses.

Scope

The new regulations will apply to any company in the world hosting user-generated content online accessible by people in the UK or enabling them to privately or publicly interact with others online.

It includes social media, video sharing and instant messaging platforms, online forums, dating apps, commercial pornography websites, as well as online marketplaces, peer-to-peer services, consumer cloud storage sites and video games which allow online interaction. Search engines will also be subject to the new regulations.

The legislation will include safeguards for freedom of expression and pluralism online - protecting people's rights to participate in society and engage in robust debate.

Online journalism from news publishers' websites will be exempt, as will reader comments on such sites. Specific measures will be included in the legislation to make sure journalistic content is still protected when it is reshared on social media platforms.

Categorised approach

Companies will have different responsibilities for different categories of content and activity, under an approach focused on the sites, apps and platforms where the risk of harm is greatest.

All companies will need to take appropriate steps to address illegal content and activity such as terrorism and child sexual abuse. They will also be required to assess the likelihood of children accessing their services and, if so, provide additional protections for them. This could be, for example, by using tools that give age assurance to ensure children are not accessing platforms which are not suitable for them.

The government will make clear in the legislation the harmful content and activity that the regulations will cover and Ofcom will set out how companies can fulfil their duty of care in codes of practice.

A small group of companies with the largest online presences and high-risk features, likely to include Facebook, TikTok, Instagram and Twitter, will be in Category 1.

These companies will need to assess the risk of legal content or activity on their services with "a reasonably foreseeable risk of causing significant physical or psychological harm to adults". They will then need to make clear what type of "legal but harmful" content is acceptable on their platforms in their terms and conditions and enforce this transparently and consistently.

All companies will need mechanisms so people can easily report harmful content or activity while also being able to appeal the takedown of content. Category 1 companies will be required to publish transparency reports about the steps they are taking to tackle online harms.

Examples of Category 2 services are platforms which host dating services or pornography and private messaging apps. Less than three per cent of UK businesses will fall within the scope of the legislation and the vast majority of companies will be Category 2 services.

Exemptions

Financial harms will be excluded from this framework, including fraud and the sale of unsafe goods. This will mean the regulations are clear and manageable for businesses, focus action where there will be most impact, and avoid duplicating existing regulation.

Where appropriate, lower-risk services will be exempt from the duty of care to avoid putting disproportionate demands on businesses. This includes exemptions for retailers who only offer product and service reviews and software used internally by businesses. Email services will also be exempt.

Some types of advertising, including organic and influencer adverts that appear on social media platforms, will be in scope. Adverts placed on an in-scope service through a direct contract between an advertiser and an advertising service, such as Facebook or Google Ads, will be exempt because this is covered by existing regulation.

Private communications

The response will set out how the regulations will apply to communication channels and services where users expect a greater degree of privacy - for example online instant messaging services and closed social media groups which are still in scope.

Companies will need to consider the impact on user privacy and that they understand how company systems and processes affect people's privacy, but firms could, for example, be required to make services safer by design by limiting the ability for anonymous adults to contact children.

Given the severity of the threat on these services, the legislation will enable Ofcom to require companies to use technology to monitor, identify and remove tightly defined categories of illegal material relating to child sexual exploitation and abuse. Recognising the potential impact on user privacy, the government will ensure this is only used as a last resort where alternative measures are not working. It will be subject to stringent legal safeguards to protect user rights.

Ofcom has opened a consultation on its plan to get ready for its likely role as the UK internet censor under the Governments Online Harms legislation. Ofcom writes

We have today published our plan of work for 2021/22. This consultation sets out our goals for the next financial year, and how we plan to achieve them.

We are consulting on this plan of work to encourage discussion with companies, governments and the public.

As part of the Plan of Work publication, we are also holding some virtual events to invite feedback on our proposed plan. These free events are open to everyone, and offer an opportunity to comment and ask questions.

The consultation ends on 5th February 2021.

The Key areas referencing internet censorship are:

Preparing to regulate online harms

3.26 The UK Government has given Ofcom new duties as the regulator for UK -established video - sharing platforms (VSPs) through the transposition of the European -wide Audiovisual Media Services Directive. VSPs are a type of online video service where users can upload and share vide os with members of the public, such as You Tube and TikTok. Ofcom will not be responsible for regulating all VSPs as our duties only apply to services established in the UK and as such , we anticipate that a relatively small number of services fall within our jurisdiction. Under the new regulations, which came into force on 1 November 2020, VSPs must have appropriate measures in place to protect children from potentially harmful content and all users from criminal content and incitement to hatred and violence. VSPs will also need to make sure certain advertising standards are met.

3.27 As well as appointing Ofcom as the regulator of UK- established VSPs the Government has announced that it is minded to appoint Ofcom as the future regulator responsible for protecting users from harmful online content. With this in mind we are undertaking the following work :

• Video-sharing platforms regulation . We have issued a short guide to the new requirements. 22 On 19 November 2020 we issued draft scope and jurisdiction guidance for consultation to help providers self -assess whether they need to notify to Ofcom as a VSP under the statutory rules from April 2021. 23 We will also consult in early 2021 on further guidance on the risk of harms and appropriate measures as well as proposals for a co-regulatory relationship with the Advertising Standards Authority (ASA) with regards to VSP advertising. We intend to issue final versions of the guidance in summer 2021.

• Preparing for the online harms regime. The UK Government has set out that it intends to put in place a regime to keep people safe online. In February 2020 it published an initial response to the 2019 White Paper24 setting out how it intends to develop the regime which stated that it was minded to appoint Ofcom as the future regulator of online harms. If confirmed, these proposed new responsibilities would constitute a significant expansion to our remit, and preparing for them would be a major area of focus in 2021/22. We will continue to provide technical advice to the UK Government on its policy development process, and we will engage with Parliament as it considers legislative proposals.

3.29 We will continue work to deepen our understanding of online harms through a range of work:

• Our Making Sense of Media programme. This programme will continue to provide insights on the needs, behaviours and attitudes of people online. Our other initiatives to research online markets and technologies will further our understanding of how online harms can be mitigated

• Stepping up our collaboration with other regulators. As discussed in the Developing strong partnerships section, we will continue our joint work through the Digital Regulators Cooperation Forum and strengthen our collaboration with regulators around the world who are also considering online harms.

• Understanding VSPs . The introduction of regulation to UK-established VSPs will provide a solid foundation to inform and develop the broader future online harms regulatory framework. This interim regime is more limited in terms of the number of regulated companies and will cover a narrower range of harms compared to the online harms white paper proposals. However, should Ofcom be confirmed as the regulator, through our work on VSPs we will develop on-the-job experience working with newly regulated online services, developing the evidence base of online harm, and building our internal skills and expertise.

The House of Lords approved a statutory instrument that adopts the EU's Audio Visual Media Services Directive into post-Brexit UK law. This law describes state censorship requirements for internet video sharing platforms.

The law change was debated on 27th November 2020 with the government introducing the law as follows:

Baroness Barran, The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

My Lords, I am pleased to introduce this instrument, laid in both Houses on 15 October, which is being made under the European Union (Withdrawal) Act 2018. These regulations remedy certain failures of retained EU law arising from the withdrawal of the United Kingdom from the EU. This instrument seeks to maintain, but not expand, Ofcom's remit to regulate video-sharing platform services. This intervention is necessary to ensure the law remains operable beyond the end of the transition period.

The EU's audiovisual media services directive, known as the AVMS directive, governs the co-ordination of national legislation on audio-visual media services. The AVMS directive was initially implemented into UK law in 2010, primarily by way of amendments to UK broadcasting legislation. The directive was subsequently revised in 2018. The UK Audiovisual Media Services Regulations 2020, which transposed the revised AVMS directive, were made and laid in Parliament on 30 September. Those regulations came into force on 1 November and introduced, for the first time, rules for video-sharing platform services. The Government have appointed Ofcom as the regulator for these services. The new rules ensure that platforms falling within UK jurisdiction have appropriate systems and processes to protect the public, including minors, from illegal and harmful material.

There were three key requirements placed on video-sharing platforms under the regulations. These were: to take appropriate measures to protect minors under 18 from harmful content, to take appropriate measures to protect the general public from harmful and certain illegal content, and to introduce standards around advertising. I also draw the attention of the House to the report from the Secondary Legislation Scrutiny Committee considering this instrument, and I thank its members for their work.

I will now address the committee's concerns regarding jurisdiction. The AVMS directive sets out technical rules governing when a platform falls within a country's jurisdiction. First, there must be a physical presence, or a group undertaking, of the platform in the country. Where there is a physical presence in more than one country, jurisdiction is decided on the basis of factors such as whether the platform is established in that country, whether the platform's main economic activity is centred in that country, and the hierarchy of group undertakings as set out by the directive.

Under the revised AVMS directive, each EU member state and the UK is responsible for regulating only the video-sharing platforms that fall within its jurisdiction. There will be only one country that has jurisdiction for each platform at any one time. However, if a platform has no physical presence in any country covered by the AVMS directive, then no country will have jurisdiction over it, even if the platform provides services in those countries.

Through this instrument, we are seeking to maintain the same position for Ofcom's remit beyond the end of the transition period. This position allows Ofcom to regulate video-sharing platforms established in the UK and additionally regulate platforms that have a physical presence in the UK but not in any other country covered by the AVMS directive. Although Ofcom's remit will not be extended to include platforms established elsewhere in the EU, we believe UK users will indirectly benefit from the EU's regulation of platforms under the AVMS directive. The regulation under this regime is systems regulation, not content regulation. We therefore expect that as platforms based outside of the UK will set up and invest in systems to comply with the AVMS regulations, it is probable that these same systems will also be introduced for their UK subsidiaries.

In the absence of this instrument, Ofcom would no longer be able to regulate any video-sharing platforms. This would result in an unacceptable regulatory gap and a lack of protection for UK users using these services. Our approach also mitigates the small risk that a video- sharing platform offering services to countries covered by the AVMS directive, but not the UK, would establish itself in the UK in order to circumvent EU law.

While we recognise that most children have a positive experience online, the reality is that the impact of harmful content and activity online can be particularly damaging for children. Over three-quarters of UK adults also express a deep concern about the internet. The UK is one of only three countries to have transposed the revised directive thus far, evidencing our commitment to protecting users online.

These regulations also pave the way for the upcoming online harms regulatory regime. Given that the online harms regulatory framework shares broadly the same objectives as the video-sharing platform regime, it is the Government's intention that the regulation of video-sharing platforms in the UK will be superseded by the online harms legislation, once the latter comes into force. Further details on the plans for online harms regulation will be set out in the full government response to the consultation on the Online Harms White Paper, which is due to be published later this year, with draft legislation ready in early 2021. With that, I beg to move.

Ofcom has published its burdensome censorship rules that will apply to video sharing platforms that are stupid enough to be based in the UK. In particular the rules are quite vague about age verification requirements for the two adult video sharing sites that remain in the UK. Maybe Ofcom is a bit shy about requiring onerous and unviable red tape of British companies trying to compete with large numbers of foreign companies that operate with a massive commercial advantage of not having age verification.

Ofcom do however note that these censorship rules are a stop gap until a wider scoped 'online harms' censorship regime which will start up in the next couple of years.

Ofcom writes:

Video-sharing platforms (VSPs) are a type of online video service which allows users to upload and share videos with members of the public.

From 1 November 2020, UK-established VSPs will be required to comply with new rules around protecting users from harmful content.

The main purpose of the new regulatory regime is to protect consumers who engage with VSPs from the risk of viewing harmful content. Providers must have appropriate measures in place to protect minors from content which might impair their physical, mental or moral development; and to protect the general public from criminal content and material likely to incite violence or hatred.

Ofcom has published a short guide outlining the new statutory requirements on providers. The guide is intended to assist platforms to determine whether they fall in scope of the new regime and to understand what providers need to do to ensure their services are compliant.

The guide also explains how Ofcom expects to approach its new duties in the period leading up to the publication of further guidance on the risk of harms and appropriate measures, which we will consult on in early 2021.

Ofcom will also be consulting on guidance on scope and jurisdiction later in 2020. VSP providers will be required to notify their services to Ofcom from 6 April 2021 and we expect to have the final guidance in place ahead of this time.

A Times article has popped up under the headline Boris Johnson set to water down curbs on tech giants.

It had all the hallmarks of an insider briefing, opening with the following

The prime minister is preparing to soften plans for sanctions on social media companies amid concerns about a backlash from tech giants.

There is a very pro-tech lobby in No 10, a well-placed source said. They got spooked by some of the coverage around online harms and raised concerns about the reaction of the technology companies. There is a real nervousness about it.

Read the full article from johncarr.blog

Oliver Dowden was appointed Secretary of State for Digital, Culture, Media and Sport on 13 February 2020.

He was previously Paymaster General and Minister for the Cabinet Office, and before that, Parliamentary Secretary at the Cabinet Office. He was elected Conservative MP for Hertsmere in May 2015.

The previous Culture Secretary Nicky Morgan will now be spending more time with her family.

There's been no suggestions that Dowden will diverge from the government path on setting out a new internet censorship regime as outlined in its OnlIne Harms white paper.

Perhaps another parliamentary appointment that may be relevant is that Julian Knight has taken over the Chair of the DCMS Select Committee, the Parliamentary scrutiny body overseeing the DCMS.

Knight seems quite keen on the internet censorship idea and will surely be spurring on the DCMS.

And finally one more censorship appointment was announced by the Government. The government has appointed Ofcom to regulate video-sharing platforms under the audiovisual media services directive, which aims to reduce harmful content on these sites. That will provide quicker protection for some harms and activities and will act as a stepping stone to the full online harms regulatory framework.

 Matt Warman, The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport announced:

We also yesterday appointed Ofcom to regulate video-sharing platforms under the audiovisual media services directive, which aims to reduce harmful content on these sites. That will provide quicker protection for some harms and activities and will act as a stepping stone to the full online harms regulatory framework.

In Fact this censorship process is set to start in September 2020 and in fact Ofcom have already produced their solution that shadows the age verification requirements of the Digital Economy Act but now may need rethinking as some of the enforcement mechanisms, such as ISP blocking, are no longer on the table. The mechanism also only applies to British based online adult companies providing online video. of which there are hardly any left, after previously being destroyed by the ATVOD regime.

The Government has signalled its approach to introducing internet censorship in a government response to consultation contributions about the Online Harms white paper. A more detailed paper will follow in the spring.

The Government has outlined onerous, vague and expensive censorship requirements on any British website that lets its users post content including speech. Any website that takes down its forums and comment sections etc will escape the nastiness of the new law.

The idea seems to be to force all speech onto a few US and Chinese social media websites that can handle the extensive censorship requirements of the British Governments. No doubt this will give a market opportunity for the US and Chinese internet giants to start charging for forcibly moderated and censored interaction.

The Government has more or less committed to appointing Ofcom as the state internet censor who will be able to impose massive fines on companies and their fall guy directors who allow speech that the government doesn't like.

On a slightly more positive note the government seems to have narrowed down its censorship scope from any conceivable thing that could be considered a harm to someone somewhere into more manageable set that can be defines as harms to children.

The introductory sections of the document read:

Executive summary

1. The Online Harms White Paper set out the intention to improve protections for users online through the introduction of a new duty of care on companies and an independent regulator responsible for overseeing this framework. The White Paper proposed that this regulation follow a proportionate and risk-based approach, and that the duty of care be designed to ensure that all companies have appropriate systems and processes in place to react to concerns over harmful content and improve the safety of their users - from effective complaint mechanisms to transparent decision-making over actions taken in response to reports of harm.

2. The consultation ran from 8 April 2019 to 1 July 2019. It received over 2,400 responses ranging from companies in the technology industry including large tech giants and small and medium sized enterprises, academics, think tanks, children's charities, rights groups, publishers, governmental organisations and individuals. In parallel to the consultation process, we have undertaken extensive engagement over the last 12 months with representatives from industry, civil society and others. This engagement is reflected in the response.

3. This initial government response provides an overview of the consultation responses and wider engagement on the proposals in the White Paper. It includes an in-depth breakdown of the responses to each of the 18 consultation questions asked in relation to the White Paper proposals, and an overview of the feedback in response to our engagement with stakeholders. This document forms an iterative part of the policy development process. We are committed to taking a deliberative and open approach to ensure that we get the detail of this complex and novel policy right. While it does not provide a detailed update on all policy proposals, it does give an indication of our direction of travel in a number of key areas raised as overarching concern across some responses.

4. In particular, while the risk-based and proportionate approach proposed by the White Paper was positively received by those we consulted with, written responses and our engagement highlighted questions over a number of areas, including freedom of expression and the businesses in scope of the duty of care. Having carefully considered the information gained during this process, we have made a number of developments to our policies. These are clarified in the 'Our Response' section below.

5. This consultation has been a critical part of the development of this policy and we are grateful to those who took part. This feedback is being factored into the development of this policy, and we will continue to engage with users, industry and civil society as we continue to refine our policies ahead of publication of the full policy response. We believe that an agile and proportionate approach to regulation, developed in collaboration with stakeholders, will strengthen a free and open internet by providing a framework that builds public trust, while encouraging innovation and providing confidence to investors.

Our response Freedom of expression

1. The consultation responses indicated that some respondents were concerned that the proposals could impact freedom of expression online. We recognise the critical importance of freedom of expression, both as a fundamental right in itself and as an essential enabler of the full range of other human rights protected by UK and international law. As a result, the overarching principle of the regulation of online harms is to protect users' rights online, including the rights of children and freedom of expression. Safeguards for freedom of expression have been built in throughout the framework. Rather than requiring the removal of specific pieces of legal content, regulation will focus on the wider systems and processes that platforms have in place to deal with online harms, while maintaining a proportionate and risk-based approach.

2. To ensure protections for freedom of expression, regulation will establish differentiated expectations on companies for illegal content and activity, versus conduct that is not illegal but has the potential to cause harm. Regulation will therefore not force companies to remove specific pieces of legal content. The new regulatory framework will instead require companies, where relevant, to explicitly state what content and behaviour they deem to be acceptable on their sites and enforce this consistently and transparently. All companies in scope will need to ensure a higher level of protection for children, and take reasonable steps to protect them from inappropriate or harmful content.

3. Services in scope of the regulation will need to ensure that illegal content is removed expeditiously and that the risk of it appearing is minimised by effective systems. Reflecting the threat to national security and the physical safety of children, companies will be required to take particularly robust action to tackle terrorist content and online child sexual exploitation and abuse.

4. Recognising concerns about freedom of expression, the regulator will not investigate or adjudicate on individual complaints. Companies will be able to decide what type of legal content or behaviour is acceptable on their services, but must take reasonable steps to protect children from harm. They will need to set this out in clear and accessible terms and conditions and enforce these effectively, consistently and transparently. The proposed approach will improve transparency for users about which content is and is not acceptable on different platforms, and will enhance users' ability to challenge removal of content where this occurs.

5. Companies will be required to have effective and proportionate user redress mechanisms which will enable users to report harmful content and to challenge content takedown where necessary. This will give users clearer, more effective and more accessible avenues to question content takedown, which is an important safeguard for the right to freedom of expression. These processes will need to be transparent, in line with terms and conditions, and consistently applied.

Ensuring clarity for businesses

6. We recognise the need for businesses to have certainty, and will ensure that guidance is provided to help businesses understand potential risks arising from different types of service, and the actions that businesses would need to take to comply with the duty of care as a result. We will ensure that the regulator consults with relevant stakeholders to ensure the guidance is clear and practicable.

Businesses in scope

7. The legislation will only apply to companies that provide services or use functionality on their websites which facilitate the sharing of user generated content or user interactions, for example through comments, forums or video sharing. Our assessment is that only a very small proportion of UK businesses (estimated to account to less than 5%) fit within that definition. To ensure clarity, guidance will be provided by the regulator to help businesses understand whether or not the services they provide or functionality contained on their website would fall into the scope of the regulation.

8. Just because a business has a social media page that does not bring it in scope of regulation. Equally, a business would not be brought in scope purely by providing referral or discount codes on its website to be shared with other potential customers on social media. It would be the social media platform hosting the content that is in scope, not the business using its services to advertise or promote their company. To be in scope, a business would have to operate its own website with the functionality to enable sharing of user-generated content, or user interactions. We will introduce this legislation proportionately, minimising the regulatory burden on small businesses. Most small businesses where there is a lower risk of harm occurring will not have to make disproportionately burdensome changes to their service to be compliant with the proposed regulation.

9. Regulation must be proportionate and based on evidence of risk of harm and what can feasibly be expected of companies. We anticipate that the regulator would assess the business impacts of any new requirements it introduces. Final policy positions on proportionality will, therefore, align with the evidence of risk of harm and impact to business. Business-to-business services have very limited opportunities to prevent harm occurring to individuals and as such will be out of scope of regulation.

Identity of the regulator

11. We are minded to make Ofcom the new regulator, in preference to giving this function to a new body or to another existing organisation. This preference is based on its organisational experience, robustness, and experience of delivering challenging, high-profile remits across a range of sectors. Ofcom is a well-established and experienced regulator, recently assuming high profile roles such as regulation of the BBC. Ofcom's focus on the communications sector means it already has relationships with many of the major players in the online arena, and its spectrum licensing duties mean that it is practised at dealing with large numbers of small businesses.

12. We judge that such a role is best served by an existing regulator with a proven track record of experience, expertise and credibility. We think that the best fit for this role is Ofcom, both in terms of policy alignment and organisational experience - for instance, in their existing work, Ofcom already takes the risk-based approach that we expect the online harms regulator will need to employ.

Transparency

13. Effective transparency reporting will help ensure that content removal is well-founded and freedom of expression is protected. In particular, increasing transparency around the reasons behind, and prevalence of, content removal may address concerns about some companies' existing processes for removing content. Companies' existing processes have in some cases been criticised for being opaque and hard to challenge.

14. The government is committed to ensuring that conversations about this policy are ongoing, and that stakeholders are being engaged to mitigate concerns. In order to achieve this, we have recently established a multi-stakeholder Transparency Working Group chaired by the Minister for Digital and Broadband which includes representation from all sides of the debate, including from industry and civil society. This group will feed into the government's transparency report, which was announced in the Online Harms White Paper and which we intend to publish in the coming months.

15. Some stakeholders expressed concerns about a potential 'one size fits all' approach to transparency, and the material costs for companies associated with reporting. In line with the overarching principles of the regulatory framework, the reporting requirements that a company may have to comply with will also vary in proportion with the type of service that is being provided, and the risk factors involved. To maintain a proportionate and risk-based approach, the regulator will apply minimum thresholds in determining the level of detail that an in-scope business would need to provide in its transparency reporting, or whether it would need to produce reports at all.

Ensuring that the regulator acts proportionately

16. The consideration of freedom of expression is at the heart of our policy development, and we will ensure that appropriate safeguards are included throughout the legislation. By taking action to address harmful online behaviours, we are confident that our approach will support more people to enjoy their right to freedom of expression and participate in online discussions.

17. At the same time, we also remain confident that proposals will not place an undue burden on business. Companies will be expected to take reasonable and proportionate steps to protect users. This will vary according to the organisation's associated risk, first and foremost, size and the resources available to it, as well as by the risk associated with the service provided. To ensure clarity about how the duty of care could be fulfilled, we will ensure there is sufficient clarity in the regulation and codes of practice about the applicable expectations on business, including where businesses are exempt from certain requirements due to their size or risk.

18. This will help companies to comply with the legislation, and to feel confident that they have done so appropriately.

Enforcement

19. We recognise the importance of the regulator having a range of enforcement powers that it uses in a fair, proportionate and transparent way. It is equally essential that company executives are sufficiently incentivised to take online safety seriously and that the regulator can take action when they fail to do so. We are considering the responses to the consultation on senior management liability and business disruption measures and will set out our final policy position in the Spring.

Protection of children

20. Under our proposals we expect companies to use a proportionate range of tools including age assurance, and age verification technologies to prevent children from accessing age-inappropriate content and to protect them from other harms. This would achieve our objective of protecting children from online pornography, and would also fulfil the aims of the Digital Economy Act.

The U.K. government has hinted at its thoughts on its internet censorship plans and has also be giving clues about the schedule.

A first announcement seems to be due this month. It seems that the government is planning a summer bill and implementation within about 18 months.

The plans are set to be discussed in Cabinet on Thursday and are due to be launched to coincide with Safer Internet Day next Tuesday when Baroness Morgan will also publish results of a consultation on last year's White Paper on online harms.

The unelected Nicky Morgan proposes the new regime should mirror regulation in the financial sector, known as senior management liability where firms have to appoint a fall guy director to take personal responsibility for ensuring they meet their legal duties. They face fines and criminal prosecution for breaches.

Ofcom will advise on potential sanctions against the directors ranging from enforcement notices, professional disqualification, fines and criminal prosecution. Under the plans, Ofcom will also draw up legally enforceable codes of practice setting out what the social media firms will be expected to do to protect users from loosely define online harms that may not even be illegal. 

Other legal harms to be covered by codes are expected to include disinformation that causes public harm such as anti-vaccine propaganda, self-harm, harassment, cyberbullying, violence and pornography where there will be tougher rules on age verification to bar children.

Tellingly proposals to include real and actual financial harms such as fraud in the codes have been dropped.

Ministers have yet to decide if to give the internet censor the power to block website access to UK internet users but this option seems out of favour, maybe because it results in massive numbers of people moving to the encrypted internet that makes it harder the authorities to snoop on people's internet activity.

The government is pushing forward with an internet censorship bill which will punish people and companies for getting it wrong without the expense and trouble of tying to dictate rules on what is allowed.

In an interesting development the Times is reporting that the government want to introduce a "senior management liability", under which executives could be held personally responsible for breaches of standards. US tech giants would be required to appoint a British-based director, who would be accountable for any breaches of the censorship rules.

It seems a little unjust to prosecute a token fall guy who is likely to have absolutely no say in the day to day decisions made by a foreign company. Still it should be a very well paid job which hopefully includes lots of coverage for legal bills and a zero notice period allowing instant resignation at the first hint of trouble.

The Government has reiterated its plans as outlined in the Online Harms white paper. It seems that the measures have been advanced somewhat as previous references to pre-legislative scrutiny have been deleted.

The Queens Speech briefing paper details the government's legislative plan for the next two years:

Online Harms

“My ministers will develop legislation to improve internet safety for all.”

• Britain is leading the world in developing a comprehensive regulatory regime to keep people safe online, protect children and other vulnerable users and ensure that there are no safe spaces for terrorists online.

• The April 2019 Online Harms White Paper set out the Government’s plan for world-leading legislation to make the UK the safest place in the world to be online. The Government will continue work to develop this legislation, alongside ensuring that the UK remains one of the best places in the world for technology companies to operate.

• The proposals, as set out in the White Paper were:

  ○ A new duty of care on companies towards their users, with an independent regulator to oversee this framework.
  ○ The Government want to keep people safe online, but we want to do this in a proportionate way, ensuring that freedom of expression is upheld and promoted online, and that the value of a free and ndependent press is preserved.
  ○ The Government is seeking to do this by ensuring that companies have the right processes and systems in place to fulfil their obligations,
  rather than penalising them for individual instances of unacceptable content.
   

• The public consultation on this has closed and the Government is analysing the responses and considering the issues raised. The Government is working
  closely with a variety of stakeholders, including technology companies and civil society groups, to understand their views.

• The Government will prepare legislation to implement the final policy in response to the consultation.

• Ahead of this legislation, the Government will publish interim codes of practice on tackling the use of the internet by terrorists and those engaged in child
  sexual abuse and exploitation. This will ensure companies take action now to tackle content that threatens our national security and the physical safety of
  children.

• The Government will publish a media literacy strategy to empower users to stay safe online.

• The Government will help start-ups and businesses to embed safety from the earliest stages of developing or updating their products and services, by publishing a Safety by Design framework.

• The Government will carry out a review of the Gambling Act, with a particular focus on tackling issues around online loot boxes and credit card misuse.

• What the Government has done so far:
   

  • The joint DCMS-Home Office Online Harms White Paper was published in April 2019. The Government also published the Social Media Code of Practice, setting out the actions that social media platforms should take to prevent bullying, insulting, intimidating and humiliating behaviours on their sites.

  • In November 2018 the Government established a new UK Council for Internet Safety. This expanded the scope of the UK Council for Child Internet Safety, and was guided by the Government's Internet Safety Strategy.

  • The UK has been championing international action on online safety. The Prime Minister used his speech at the United Nations General Assembly to champion the UK's work on online safety.

The April 2019 Online Harms White Paper set out the Government's plan for world-leading legislation to make the UK the safest place in the world to be online.

The proposals, as set out in the White Paper were:

• A new duty of care on companies towards their users, with an independent regulator to oversee this framework.

• We want to keep people safe online, but we want to do this in a proportionate way, ensuring that freedom of expression is upheld and promoted online, and businesses do not face undue burdens.

• We are seeking to do this by ensuring that companies have the right processes and systems in place to fulfil their obligations, rather than penalising them for individual instances of unacceptable content.

• Our public consultation on this has closed and we are analysing the responses and considering the issues raised. We are working closely with a variety of stakeholders, including technology companies and civil society groups, to understand their views.

We are seeking to do this by ensuring that companies have the right processes and systems in place to fulfil their obligations, rather than penalising them for individual instances of unacceptable content.

Our public consultation on this has closed and we are analysing the responses and considering the issues raised. We are working closely with a variety of stakeholders, including technology companies and civil society groups, to understand their views.

Next steps:

• We will publish draft legislation for pre-legislative scrutiny.

• Ahead of this legislation, the Government will publish work on tackling the use of the internet by terrorists and those engaged in child sexual abuse and exploitation, to ensure companies take action now to tackle content that threatens our national security and the physical safety of children.

• We are also taking forward additional measures, including a media literacy strategy, to empower users to stay safe online. A Safety by Design framework will help start-ups and small businesses to embed safety during the development or update of their products and services.

MPs and activists have urged the government to protect women through censorship. They write in a letter

Women around the world are 27 times more likely to be harassed online than men. In Europe, 9 million girls have experienced some kind of online violence by the time they are 15 years old. In the UK, 21% of women have received threats of physical or sexual violence online. The basis of this abuse is often, though not exclusively, misogyny.

Misogyny online fuels misogyny offline. Abusive comments online can lead to violent behaviour in real life. Nearly a third of respondents to a Women's Aid survey said where threats had been made online from a partner or ex-partner, they were carried out. Along with physical abuse, misogyny online has a psychological impact. Half of girls aged 11-21 feel less able to share their views due to fear of online abuse, according to Girlguiding UK .

The government wants to make Britain the safest place in the world to be online, yet in the online harms white paper, abuse towards women online is categorised as harassment, with no clear consequences, whereas similar abuse on the grounds of race, religion or sexuality would trigger legal protections.

If we are to eradicate online harms, far greater emphasis in the government's efforts should be directed to the protection and empowerment of the internet's single largest victim group: women. That is why we back the campaign group Empower's calls for the forthcoming codes of practice to include and address the issue of misogyny by name, in the same way as they would address the issue of racism by name. Violence against women and girls online is not harassment. Violence against women and girls online is violence.

Ali Harris Chief executive, Equally Ours
Angela Smith MP Independent
Anne Novis Activist
Lorely Burt Liberal Democrat, House of Lords
Ruth Lister Labour, House of Lords
Barry Sheerman MP Labour
Caroline Lucas MP Green
Daniel Zeichner MP Labour
Darren Jones MP Labour
Diana Johnson MP Labour
Flo Clucas Chair, Liberal Democrat Women
Gay Collins Ambassador, 30% Club
Hannah Swirsky Campaigns officer, René Cassin
Joan Ryan MP Independent Group for Change
Joe Levenson Director of communications and campaigns, Young Women's Trust
Jonathan Harris House of Lords, Labour
Luciana Berger MP Liberal Democrats
Mandu Reid Leader, Women's Equality Party
Maya Fryer WebRoots Democracy
Preet Gill MP Labour
Sarah Mann Director, Friends, Families and Travellers
Siobhan Freegard Founder, Channel Mum
Jacqui Smith Empower

Offsite Patreon Comment: What will go wrong?

See subscription article from patreon.com

The National Secular Society has warned that government plans to require social media companies to censor hateful and offensive content could act as a de facto blasphemy law.

In its response to the government's white paper on online harms , the NSS said efforts to confront and challenge hateful speech and behaviour must not undermine free speech on religion.

The white paper outlines plans to create a regulator with the power to fine online platforms and block websites. The regulator will be required to create guidance for social media companies, outlining what constitutes hateful content online.

The guidance would include content which is not necessarily illegal, content which may directly or indirectly cause harm to other users and some offensive material in that definition.

The NSS said censoring content that could be considered offensive would severely restrict freedom of expression, including the freedom to criticise or satirise religion. The society added that the question of offence was an entirely subjective matter.

The NSS also noted that a requirement on companies to demonstrate 'continuous improvement' in tackling hateful material could encourage them to be more censorious.

The NSS also challenged a claim in the white paper that offending online is just as serious as that occurring offline. The NSS said this line lowered the threshold for hate crimes, because people's ability to commit such crimes is much more limited online than offline.

The society raised the example of a man who was recently arrested on suspicion of hate crime after publishing a video on Facebook of himself mocking Islamic prayer in a hospital prayer room. The NSS noted that threats of death and violence were made towards the man and were reported to the police, but no action appeared to have been taken against the perpetrators to date.

The NSS also criticised the government's definition of hate crime which is contained within the white paper. The definition says hate crimes include crimes demonstrating hostility on the grounds of an individual's actual or perceived race, religion, sexual orientation, disability or transgender identity.

The NSS said this definition was too broad, meaning any incident in which an individual demonstrates hostility toward another individual based on the listed characteristics could be treated as a hate crime.

The society said strong critics of religion or Christians who preach that gay people will go to Hell were examples of those who risk being charged with hate crimes.

NSS spokesperson Megan Manson said the white paper had given too much ground to those who attempt to shut down legitimate expression, including on religion.

The government should treat the fundamental right to free expression as a positive value in its attempts to promote social cohesion. Instead it has proposed cracking down on what people can say on social media, based largely on vague and broad definitions of what constitutes 'hateful' material. In the process it risks significantly undermining free expression for all and stirring social resentment.

Ministers must not treat the civil liberties of British citizens as an afterthought in their efforts to tackle online harms.

The Government is accepting public feedback on their plan until Monday 1 July. Send a message to their consultation using Open Rights Group  tool before the end of Monday!

The Open Rights Group comments on the government censorship plans:

Online Harms: Blocking websites doesn't work -- use a rights-based approach instead

Blocking websites isn't working. It's not keeping children safe and it's stopping vulnerable people from accessing information they need. It's not the right approach to take on Online Harms.

This is the finding from our recent research into website blocking by mobile and broadband Internet providers. And yet, as part of its Internet regulation agenda, the UK Government wants to roll out even more blocking.

The Government's Online Harms White Paper is focused on making online companies fulfil a "duty of care" to protect users from "harmful content" -- two terms that remain troublingly ill-defined. 1

The paper proposes giving a regulator various punitive measures to use against companies that fail to fulfil this duty, including powers to block websites.

If this scheme comes into effect, it could lead to widespread automated blocking of legal content for people in the UK.

Mobile and broadband Internet providers have been blocking websites with parental control filters for five years. But through our Blocked project -- which detects incorrect website blocking -- we know that systems are still blocking far too many sites and far too many types of sites by mistake.

Thanks to website blocking, vulnerable people and under-18s are losing access to crucial information and support from websites including counselling, charity, school, and sexual health websites. Small businesses are losing customers. And website owners often don't know this is happening.

We've seen with parental control filters that blocking websites doesn't have the intended outcomes. It restricts access to legal, useful, and sometimes crucial information. It also does nothing to prevent people who are determined to get access to material on blocked websites, who often use VPNs to get around the filters. Other solutions like filters applied by a parent to a child's account on a device are more appropriate.

Unfortunately, instead of noting these problems inherent to website blocking by Internet providers and rolling back, the Government is pressing ahead with website blocking in other areas.

Blocking by Internet providers may not work for long. We are seeing a technical shift towards encrypted website address requests that will make this kind of website blocking by Internet providers much more difficult.

When I type a human-friendly web address such as openrightsgroup.org into a web browser and hit enter, my computer asks a Domain Name System (DNS) for that website's computer-friendly IP address - which will look something like 46.43.36.233 . My web browser can then use that computer-friendly address to load the website.

At the moment, most DNS requests are unencrypted. This allows mobile and broadband Internet providers to see which website I want to visit. If a website is on a blocklist, the system won't return the actual IP address to my computer. Instead, it will tell me that that site is blocked, or will tell my computer that the site doesn't exist. That stops me visiting the website and makes the block effective.

Increasingly, though, DNS requests are being encrypted. This provides much greater security for ordinary Internet users. It also makes website blocking by Internet providers incredibly difficult. Encrypted DNS is becoming widely available through Google's Android devices, on Mozilla's Firefox web browser and through Cloudflare's mobile application for Android and iOS. Other encrypted DNS services are also available.

Our report DNS Security - Getting it Right discusses issues around encrypted DNS in more detail.

Blocking websites may be the Government's preferred tool to deal with social problems on the Internet but it doesn't work, both in policy terms and increasingly at a technical level as well.

The Government must accept that website blocking by mobile and broadband Internet providers is not the answer. They should concentrate instead on a rights-based approach to Internet regulation and on educational and social approaches that address the roots of complex societal issues.

Offsite Article: CyberLegal response to the Online Harms Consultation

30th June 2019. See article from cyberleagle.com

Speech is not a tripping hazard

Newspapers and the press have generally given the new internet censorship proposals a jistifiable negative reception:

The Guardian

See Internet crackdown raises fears for free speech in Britain from theguardian.com

Critics of the government's flagship internet regulation policy are warning it could lead to a North Korean-style censorship regime, where regulators decide which websites Britons are allowed to visit, because of how broad the proposals are.

The Daily Mail

See New internet regulation laws will lead to widespread censorship from dailymail.co.uk

Critics brand new internet regulation laws the most draconian crackdown in the Western democratic world as they warn it could threaten the freedom of speech of millions of Britons

The Independent

See UK's new internet plans could bring state censorship of the internet, campaigners warn from independent. co.uk

The government's new proposals to try and protect people from harm on the internet could actually create a huge censorship operation, campaigners have warned.

Index on Censorship

See Online harms proposals pose serious risks to freedom of expressionfrom indexoncensorship.org

Index on Censorship has raised strong concerns about the government's focus on tackling unlawful and harmful online content, particularly since the publication of the Internet Safety Strategy Green Paper in 2017. In October 2018, Index published a joint statement with Global Partners Digital and Open Rights Group noting that any proposals that regulate content are likely to have a significant impact on the enjoyment and exercise of human rights online, particularly freedom of expression.

We have also met with officials from the Department for Digital, Culture, Media and Sport, as well as from the Home Office, to raise our thoughts and concerns.

With the publication of the Online Harms White Paper , we would like to reiterate our earlier points.

While we recognise the government's desire to tackle unlawful content online, the proposals mooted in the white paper -- including a new duty of care on social media platforms , a regulatory body , and even the fining and banning of social media platforms as a sanction -- pose serious risks to freedom of expression online.

These risks could put the United Kingdom in breach of its obligations to respect and promote the right to freedom of expression and information as set out in Article 19 of the International Covenant on Civil and Political Rights and Article 10 of the European Convention on Human Rights, amongst other international treaties.

Social media platforms are a key means for tens of millions of individuals in the United Kingdom to search for, receive, share and impart information, ideas and opinions. The scope of the right to freedom of expression includes speech which may be offensive, shocking or disturbing . The proposed responses for tackling online safety may lead to disproportionate amounts of legal speech being curtailed, undermining the right to freedom of expression.

In particular, we raise the following concerns related to the white paper:

• Lack of evidence base

The wide range of different harms which the government is seeking to tackle in this policy process require different, tailored responses. Measures proposed must be underpinned by strong evidence, both of the likely scale of the harm and the measures' likely effectiveness. The evidence which formed the base of the Internet Safety Strategy Green Paper was highly variable in its quality. Any legislative or regulatory measures should be supported by clear and unambiguous evidence of their need and effectiveness.

• Duty of care concerns/ problems with 'harm' definition

Index is concerned at the use of a duty of care regulatory approach. Although social media has often been compared the public square, the duty of care model is not an exact fit because this would introduce regulation -- and restriction -- of speech between individuals based on criteria that is far broader than current law. A failure to accurately define "harmful" content risks incorporating legal speech, including political expression, expressions of religious views, expressions of sexuality and gender, and expression advocating on behalf of minority groups.

• Risks in linking liability/sanctions to platforms over third party content

While well-meaning, proposals such as these contain serious risks, such as requiring or incentivising wide-sweeping removal of lawful and innocuous content. The imposition of time limits for removal, heavy sanctions for non-compliance or incentives to use automated content moderation processes only heighten this risk, as has been evidenced by the approach taken in Germany via its Network Enforcement Act (or NetzDG), where there is evidence of the over-removal of lawful content.

• Lack of sufficient protections for freedom of expression.

The obligation to protect users' rights online that is included in the white paper gives insufficient weight to freedom of expression. A much clearer obligation to protect freedom of expression should guide development of future regulation.

In recognition of the UK's commitment to the multistakeholder model of internet governance, we hope all relevant stakeholders, including civil society experts on digital rights and freedom of expression, will be fully engaged throughout the development of the Online Harms bill.

Privacy International

See  PI's take on the UK government's new proposal to tackle "online harms" from privacyinternational.org

PI welcomes the UK government's commitment to investigating and holding companies to account. When it comes to regulating the internet, however, we must move with care. Failure to do so will introduce, rather than reduce, "online harms". A 12-week consultation on the proposals has also been launched today. PI plans to file a submission to the consultation as it relates to our work. Given the breadth of the proposals, PI calls on others respond to the consultation as well.

Here are our initial suggestions:

• proceed with care: proposals of regulation of content on digital media platforms should be very carefully evaluated, given the high risks of negative impacts on expression, privacy and other human rights. This is a very complex challenge and we support the need for broad consultation before any legislation is put forward in this area.

• do not lose sight of how data exploitation facilitates the harms identified in the report and ensure any new regulator works closely with others working to tackle these issues.

• assess carefully the delegation of sole responsibility to companies as adjudicators of content. This would empower corporate judgment over content, with would have implications for human rights, particularly freedom of expression and privacy.

• require that judicial or other independent authorities, rather than government agencies, are the final arbiters of decisions regarding what is posted online and enforce such decisions in a manner that is consistent with human rights norms.

• assess the privacy implications of any demand for "proactive" monitoring of content in digital media platforms.

• ensure that any requirement or expectation of deploying automated decision making/AI is in full compliance with existing human rights and data protection standards (which, for example, prohibit, with limited exceptions, relying on solely automated decisions, including profiling, when they significantly affect individuals).

• ensure that company transparency reports include information related to how the content was targeted at users.

• require companies to provide efficient reporting tools in multiple languages, to report on action taken with regard to content posted online. Reporting tools should be accessible, user-friendly, and easy to find. There should be full transparency regarding the complaint and redress mechanisms available and opportunities for civil society to take action.

Offsite Comment: Ridiculous Plan

10th April 2019. See article from techdirt.com

UK Now Proposes Ridiculous Plan To Fine Internet Companies For Vaguely Defined Harmful Content

Last week Australia rushed through a ridiculous bill to fine internet companies if they happen to host any abhorrent content. It appears the UK took one look at that nonsense and decided it wanted some too. On Monday it released a white paper calling for massive fines for internet companies for allowing any sort of online harms. To call the plan nonsense is being way too harsh to nonsense

The plan would result in massive, widespread, totally unnecessary censorship solely for the sake of pretending to do something about the fact that some people sometimes do not so nice things online. And it will place all of the blame on the internet companies for the (vaguely defined) not so nice things that those companies' users might do online.

Read the full article from techdirt.com

Offsite Comment: Sajid Javid's new internet rules will have a chilling effect on free speech

11th April 2019. See article from spectator.co.uk by Toby Young

How can the government prohibit comments that might cause harm without defining what harm is?

Offsite Comment: Plain speaking from Chief Censor Sajid Javid

11th April 2019. See tweet from twitter.com

Letter to the Guardian: Online Harms white paper would make Chinese censors proud

11th April 2019. See article from theguardian.com

We agree with your characterisation of the online harms white paper as a flawed attempt to deal with serious problems (Regulating the internet demands clear thought about hard problems, Editorial, 9 April). However, we would draw your attention to several fundamental problems with the proposal which could be disastrous if it proceeds in its current form.

Firstly, the white paper proposes to regulate literally the entire internet, and censor anything non-compliant. This extends to blogs, file services, hosting platforms, cloud computing; nothing is out of scope.

Secondly, there are a number of undefined harms with no sense of scope or evidence thresholds to establish a need for action. The lawful speech of millions of people would be monitored, regulated and censored.

The result is an approach that would make China's state censors proud. It would be very likely to face legal challenge. It would give the UK the widest and most prolific internet censorship in an apparently functional democracy. A fundamental rethink is needed.

Antonia Byatt Director, English PEN,
Silkie Carlo Big Brother Watch
Thomas Hughes Executive director, Article 19
Jim Killock Executive director, Open Rights Group
Joy Hyvarinen Head of advocacy, Index on Censorship

Comment: The DCMS Online Harms Strategy must design in fundamental rights

12th April 2019. See article from openrightsgroup.org

Increasingly over the past year, DCMS has become fixated on the idea of imposing a duty of care on social media platforms, seeing this as a flexible and de-politicised way to emphasise the dangers of exposing children and young people to certain online content and make Facebook in particular liable for the uglier and darker side of its user-generated material.

DCMS talks a lot about the 'harm' that social media causes. But its proposals fail to explain how harm to free expression impacts would be avoided.

On the positive side, the paper lists free expression online as a core value to be protected and addressed by the regulator. However, despite the apparent prominence of this value, the mechanisms to deliver this protection and the issues at play are not explored in any detail at all.

In many cases, online platforms already act as though they have a duty of care towards their users. Though the efficacy of such measures in practice is open to debate, terms and conditions, active moderation of posts and algorithmic choices about what content is pushed or downgraded are all geared towards ousting illegal activity and creating open and welcoming shared spaces. DCMS hasn't in the White Paper elaborated on what its proposed duty would entail. If it's drawn narrowly so that it only bites when there is clear evidence of real, tangible harm and a reason to intervene, nothing much will change. However, if it's drawn widely, sweeping up too much content, it will start to act as a justification for widespread internet censorship.

If platforms are required to prevent potentially harmful content from being posted, this incentivises widespread prior restraint. Platforms can't always know in advance the real-world harm that online content might cause, nor can they accurately predict what people will say or do when on their platform. The only way to avoid liability is to impose wide-sweeping upload filters. Scaled implementation of this relies on automated decision-making and algorithms, which risks even greater speech restrictions given that machines are incapable of making nuanced distinctions or recognising parody or sarcasm.

DCMS's policy is underpinned by societally-positive intentions, but in its drive to make the internet "safe", the government seems not to recognise that ultimately its proposals don't regulate social media companies, they regulate social media users. The duty of care is ostensibly aimed at shielding children from danger and harm but it will in practice bite on adults too, wrapping society in cotton wool and curtailing a whole host of legal expression.

Although the scheme will have a statutory footing, its detail will depend on codes of practice drafted by the regulator. This makes it difficult to assess how the duty of care framework will ultimately play out.

The duty of care seems to be broadly about whether systemic interventions reduce overall "risk". But must the risk be always to an identifiable individual, or can it be broader - to identifiable vulnerable groups? To society as a whole? What evidence of harm will be required before platforms should intervene? These are all questions that presently remain unanswered.

DCMS's approach appears to be that it will be up to the regulator to answer these questions. But whilst a sensible regulator could take a minimalist view of the extent to which commercial decisions made by platforms should be interfered with, allowing government to distance itself from taking full responsibility over the fine detailing of this proposed scheme is a dangerous principle. It takes conversations about how to police the internet out of public view and democratic forums. It enables the government to opt not to create a transparent, judicially reviewable legislative framework. And it permits DCMS to light the touch-paper on a deeply problematic policy idea without having to wrestle with the practical reality of how that scheme will affect UK citizens' free speech, both in the immediate future and for years to come.

How the government decides to legislate and regulate in this instance will set a global norm.

The UK government is clearly keen to lead international efforts to regulate online content. It knows that if the outcome of the duty of care is to change the way social media platforms work that will apply worldwide. But to be a global leader, DCMS needs to stop basing policy on isolated issues and anecdotes and engage with a broader conversation around how we as society want the internet to look. Otherwise, governments both repressive and democratic are likely to use the policy and regulatory model that emerge from this process as a blueprint for more widespread internet censorship.

The House of Lords report on the future of the internet, published in early March 2019, set out ten principles it considered should underpin digital policy-making, including the importance of protecting free expression. The consultation that this White Paper introduces offers a positive opportunity to collectively reflect, across industry, civil society, academia and government, on how the negative aspects of social media can be addressed and risks mitigated. If the government were to use this process to emphasise its support for the fundamental right to freedom of expression - and in a way that goes beyond mere expression of principle - this would also reverberate around the world, particularly at a time when press and journalistic freedom is under attack.

The White Paper expresses a clear desire for tech companies to "design in safety". As the process of consultation now begins, we call on DCMS to "design in fundamental rights". Freedom of expression is itself a framework, and must not be lightly glossed over. We welcome the opportunity to engage with DCMS further on this topic: before policy ideas become entrenched, the government should consider deeply whether these will truly achieve outcomes that are good for everyone.

  The Government writes:

In the first online safety laws of their kind, social media companies and tech firms will be legally required to protect their users and face tough penalties if they do not comply.

As part of the Online Harms White Paper, a joint proposal from the Department for Digital, Culture, Media and Sport and Home Office, a new independent regulator will be introduced to ensure companies meet their responsibilities.

This will include a mandatory 'duty of care', which will require companies to take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services. The regulator will have effective enforcement tools, and we are consulting on powers to issue substantial fines, block access to sites and potentially to impose liability on individual members of senior management.

A range of harms will be tackled as part of the Online Harms White Paper , including inciting violence and violent content, encouraging suicide, disinformation, cyber bullying and children accessing inappropriate material.

There will be stringent requirements for companies to take even tougher action to ensure they tackle terrorist and child sexual exploitation and abuse content.

The new proposed laws will apply to any company that allows users to share or discover user generated content or interact with each other online. This means a wide range of companies of all sizes are in scope, including social media platforms, file hosting sites, public discussion forums, messaging services, and search engines.

A regulator will be appointed to enforce the new framework. The Government is now consulting on whether the regulator should be a new or existing body. The regulator will be funded by industry in the medium term, and the Government is exploring options such as an industry levy to put it on a sustainable footing.

A 12 week consultation on the proposals has also been launched today. Once this concludes we will then set out the action we will take in developing our final proposals for legislation.

Tough new measures set out in the White Paper include:

• A new statutory 'duty of care' to make companies take more responsibility for the safety of their users and tackle harm caused by content or activity on their services.

• Further stringent requirements on tech companies to ensure child abuse and terrorist content is not disseminated online.

• Giving a regulator the power to force social media platforms and others to publish annual transparency reports on the amount of harmful content on their platforms and what they are doing to address this.

• Making companies respond to users' complaints, and act to address them quickly.

• Codes of practice, issued by the regulator, which could include measures such as requirements to minimise the spread of misleading and harmful disinformation with dedicated fact checkers, particularly during election periods.

• A new "Safety by Design" framework to help companies incorporate online safety features in new apps and platforms from the start.

• A media literacy strategy to equip people with the knowledge to recognise and deal with a range of deceptive and malicious behaviours online, including catfishing, grooming and extremism.

The UK remains committed to a free, open and secure Internet. The regulator will have a legal duty to pay due regard to innovation, and to protect users' rights online, being particularly mindful to not infringe privacy and freedom of expression.

Recognising that the Internet can be a tremendous force for good, and that technology will be an integral part of any solution, the new plans have been designed to promote a culture of continuous improvement among companies. The new regime will ensure that online firms are incentivised to develop and share new technological solutions, like Google's "Family Link" and Apple's Screen Time app, rather than just complying with minimum requirements. Government has balanced the clear need for tough regulation with its ambition for the UK to be the best place in the world to start and grow a digital business, and the new regulatory framework will provide strong protection for our citizens while driving innovation by not placing an impossible burden on smaller companies.

The world's biggest internet companies including Facebook, Google and Twitter are represented by a trade group call The Internet Association. This organisation has written to UK government ministers to outline how they believe harmful online activity should be regulated.

The letter has been sent to the culture, health and home secretaries. The letter will be seen as a pre-emptive move in the coming negotiation over new rules to govern the internet. The government is due to publish a delayed White Paper on online harms in the coming weeks.

The letter outlines six principles:

• "Be targeted at specific harms, using a risk-based approach
• "Provide flexibility to adapt to changing technologies, different services and evolving societal expectations
• "Maintain the intermediary liability protections that enable the internet to deliver significant benefits for consumers, society and the economy
• "Be technically possible to implement in practice
• "Provide clarity and certainty for consumers, citizens and internet companies
• "Recognise the distinction between public and private communication"

Many leading figures in the UK technology sector fear a lack of expertise in government, and hardening public sentiment against the excesses of the internet, will push the Online Harms paper in a more radical direction.

Three of the key areas of debate are the definition of online harm, the lack of liability for third-party content, and the difference between public and private communication.

The companies insist that government should recognise the distinction between clearly illegal content and content which is harmful, but not illegal. If these leading tech companies believe this government definition of harm is too broad, their insistence on a distinction between illegal and harmful content may be superseded by another set of problems.

The companies also defend the principle that platforms such as YouTube permit users to post and share information without fear that those platforms will be held liable for third-party content. Another area which will be of particular interest to the Home Office is the insistence that care should be taken to avoid regulation encroaching into the surveillance of private communications.

Social media companies face criminal sanctions for failing to protect children from online harms, according to drafts of the Government's White Paper circulating in Whitehall.

Civil servants are proposing a new corporate offence as an option in the White Paper plans for a tough new censor with the power to force social media firms to take down illegal content and to police legal but harmful material.

They see criminal sanctions as desirable and as an important part of a regulatory regime, said one source who added that there's a recognition particularly on the Home Office side that this needs to be a regulator with teeth. The main issue they need to satisfy ministers on is extra-territoriality, that is can you apply this to non-UK companies like Facebook and YouTube? The belief is that you can.

The White Paper, which is due to published mid-March followed by a Summer consultation, is not expected to lay out as definitive a plan as previously thought. A decision on whether to create a brand new censor or use Ofcom is expected to be left open. A Whitehall source said:

Criminal sanctions are going to be put into the White Paper as an option. We are not necessarily saying we are going to do it but these are things that are open to us. They will be allied to a system of fines amounting to 4% of global turnover or Euros 20m, whichever is higher.

Government minister Jeremy Wright told the Telegraph this week he was especially focused on ensuring that technology companies enforce minimum age standards. He also indicated the Government w ould fulfill a manifesto commitment to a levy on social media firms, that could fund the new censorr.

There is every reason to believe that the government and opposition are moving to a consensus on introducing a duty of care for social media companies to reduce harm and risk to their users. This may be backed by an Internet regulator, who might decide what kind of mitigating actions are appropriate to address the risks to users on different platforms.

This idea originated from a series of papers by Will Perrin and Lorna Woods and has been mentioned most recently in a recent Science and Technology committee report and by NGOs including children's charity 5Rights.

A duty of care has some obvious merits: it could be based on objective risks, based on evidence, and ensure that mitigations are proportionate to those risks. It could take some of the politicisation out of the current debate.

However, it also has obvious problems. For a start, it focuses on risk rather than process . It moves attention away from the fact that interventions are regulating social media users just as much as platforms. It does not by itself tell us that free expression impacts will be considered, tracked or mitigated.

Furthermore, the lack of focus that a duty of care model gives to process means that platform decisions that have nothing to do with risky content are not necessarily based on better decisions, independent appeals and so on. Rather, as has happened with German regulation, processes can remain unaffected when they are outside a duty of care.

In practice, a lot of content which is disturbing or offensive is already banned on online platforms. Much of this would not be in scope under a duty of care but it is precisely these kinds of material which users often complain about, when it is either not removed when they want it gone, or is removed incorrectly. Any model of social media regulation needs to improve these issues, but a duty of care is unlikely to touch these problems.

There are very many questions about the kinds of risk, whether to individual in general, vulnerable groups, or society at large; and the evidence required to create action. The truth is that a duty of care, if cast sensibly and narrowly, will not satisfy many of the people who are demanding action; equally, if the threshold to act is low, then it will quickly be seen to be a mechanism for wide-scale Internet censorship.

It is also a simple fact that many decisions that platforms make about legal content which is not risky are not the business of government to regulate. This includes decisions about what legal content is promoted and why. For this reason, we believe that a better approach might be to require independent self-regulation of major platforms across all of their content decisions. This requirement could be a legislative one, but the regulator would need to be independent of government and platforms.

Independent self-regulation has not been truly tried. Instead, voluntary agreements have filled its place. We should be cautious about moving straight to government regulation of social media and social media users. The government refuses to regulate the press in this way because it doesn't wish to be seen to be controlling print media. It is pretty curious that neither the media nor the government are spelling out the risks of state regulation of the speech of millions of British citizens.

That we are in this place is of course largely the fault of the social media platforms themselves, who have failed to understand the need and value of transparent and accountable systems to ensure they are acting properly. That, however, just demonstrates the problem: politically weak platforms who have created monopoly positions based on data silos are now being sliced and diced at the policy table for their wider errors. It's imperative that as these government proposals progress we keep focus on the simple fact that it is end users whose speech will ultimately be regulated.

Wrangling in Whitehall has held up plans to set up a social media censor dubbed Ofweb, The Mail on Sunday reveals.

The Government was due to publish a White Paper this winter on censorship of tech giants but this Mail has learnt it is still far from ready. Culture Secretary Jeremy Wright said it would be published within a month, but a Cabinet source said that timeline was wholly unrealistic. Other senior Government sources went further and said the policy document is unlikely to surface before the Spring.

Key details on how a new censor would work have yet to be decided while funding from the Treasury has not yet been secured. Another problem is that some Ministers believe the proposed clampdown is too draconian and are preparing to try to block or water down the plan.

There are also concerns that technically difficult requirements would benefit the largest US companies as smaller European companies and start ups would not be able to afford the technology and development required.

The Mail on Sunday understands Jeremy Wright has postponed a visit to Facebook HQ in California to discuss the measures, as key details are still up in the air.

Update: The Conservatives don't have a monopoly on internet censorship...Labour agrees

6th February 2019. See  article from ft.com

Labour has called for a new entity capable of taking on the likes of Facebook and Google. Tom Watson, the shadow digital secretary, will on Wednesday say a regulator should also have responsibility for competition policy and be able to refer cases to the Competition and Markets Authority.

According to Watson, any duty of care would only be effective with penalties that seriously affect companies' bottom lines. He has referred to regulators' ability to fine companies up to 4% of global turnover, or euro 20m, whichever is higher, for worst-case breaches of the EU-wide General Data Protection Regulation.

The U.K. government is rushing to finalize a draft internet censorship law particularly targeting social media but key details of the proposal have yet to be finalised amid concerns about stifling innovation.

Government officials have been meeting with industry players, MPs, peers and other groups over the past month as they try to finalise their proposals.

People involved in those discussions said there is now broad agreement about the need to impose a new duty of care on big tech companies, as well as the need to back up their terms and conditions with the force of law.

A white paper is due be published by the end of winter. But the Department for Digital, Culture, Media and Sport, which is partly responsible for writing up the new rules alongside the Home Office, is still deliberating over key aspects with just weeks to go until the government said it would unveil an outline of its proposals.

Among the sticking points are worries that regulation could stifle innovation in one of the U.K. economy's most thriving sectors and concerns over whether it can keep pace with rapid technological change. Another is ensuring sufficient political support to pass the law despite likely opposition from parts of the Conservative Party. A third is deciding what regulatory agency would ultimately be responsible for enforcing the so-called Internet Safety Law.

A major unresolved question is what censorship body will be in charge of enforcing laws that could expose big tech companies to greater liability for hosted content, a prospect that firms including Google and Facebook have fought at the European level.

Several people who spoke to POLITICO said the government does not appear to have settled on who would be the censor, although the communications regulator Ofcom is very much in the mix, however there are concerns that Ofcom is already getting too big.