2020: a decisive year for online content regulation?

In 2019, we spent a lot of time talking about the UK’s Online Harms White Paper—the first and (at that time) only comprehensive attempt by a government to address the full spectrum of different forms of illegal and harmful content. 

We continue to have serious concerns about many aspects of the model—from the broad scope of harms covered, to the punitive sanctions regime it would impose on platforms. 

What we don’t have? Concrete updates. Since we last discussed the White Paper in our October 2019 Digest, there has been little clarity on what will happen next. A response to the consultation—promised by the end of 2019—has not appeared. And while the government originally said they’d be publishing a draft Bill to undergo pre-legislative scrutiny, the most recent Queen’s Speech suggested that this stage might be skipped, with a Bill introduced straight into Parliament. Following the recent general election, it's likely decisions are being put off until a new ministerial team is in place.

But despite uncertainty in the UK, developments elsewhere suggest that 2020 is going to be a significant year for online content regulation.

In Australia, the government has just published a Discussion Paper setting out its own model for dealing with illegal and harmful content on online platforms. Like the UK’s approach, it will include codes of practice and a regulator. There are, however, important (and encouraging) differences, which we explore here. The deadline for consultation responses is 19 February, with legislation likely to appear later in the year.

Meanwhile, the Irish government has released proposals for an Online Safety and Media Regulation Bill, which contains substantial provisions around online harms. Importantly, the scope is significantly narrower than the UK’s approach, focusing only on the most serious harms (e.g. child sexual abuse material, abusive content, and incitement to hatred or violence)—and there are safeguards around freedom of expression that the UK’s White Paper lacks. 

What does the emergence of these rival approaches to platform regulation tell us about the state of play in 2020? 

First: if there was any doubt that the era of pure self-regulation for online platforms was over, it can now be said with certainty. Second: governments aren’t waiting for an international consensus to emerge around what regulation should look like—they are forging ahead with their own ideas. Finally: this is all likely to be a serious headache for tech companies, who will have to contort themselves to comply with multiple similar-but-not-identical regulations. Happy new year!

Notes

• Ranking Digital Rights (RDR) have reviewed the bylaws from a human rights perspective, noting that while the Oversight Board “shows real progress toward new models of content moderation that protect and promote human rights”, there is still room for improvement. In particular, RDR suggests that human rights principles should play a central role in the Oversight Board’s processes and structures, and the scope of the Board should extend to Facebook’s due diligence mechanisms and algorithmic oversight.
• Meanwhile, Evelyn Douek has provided a helpful summary of the 46 page bylaws, highlighting some of the ambiguities and shortcomings. These include the fact that the Board will only be able to make decisions about content which has already been removed (and not controversies over content which was left up); the setting of arbitrary deadlines for decisionmaking, which risks rushed conclusions; and a lack of clarity over when the Board’s jurisdiction will include advertisements, as opposed to simply user-generated content.

Cybersecurity

A few important updates on cyber norms as we head into 2020. 

• Two important GGE documents are now available online on the Office of Disarmament Affairs website: a summary of the informal consultations with non member-states on 5-6 December 2019; and a summary of the consultations which took place with regional organisations in June-October 2019.
• While very little about the GGE process is communicated openly, sources inside tell us that—despite continuing tension—there’s growing consensus that a positive approach is needed; and there’s increasing impetus to get out a consensus report which complements OEWG discussions. Interestingly, the public summaries of the GGE which are available suggest that some GGE states are advocating for more formal engagement with regional organisations. Potentially useful leverage for NGOs pushing for multistakeholder consultations...