More Harm Than Good?: Ofcom given the power to penalise online services under the Online Harms Bills

December 27, 2020

3 min read

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What's going on here?

The Online Harms Bill, containing measures designed to protect UK internet users from harmful content, has designated Ofcom as the body with the power to block and fine online services that unsuccessfully protect their users. 

What does this mean?

The Online Harms Bill is designed to fight the epidemic of harmful content on the internet including disinformation, bullying, sexual exploitation – including that of children, and terrorist activities, following extensive criticism of social media companies’ failure to enact change. It will not cover cases of fraud but will partially cover advertising. The legislation will go beyond social media sites, including “search engines, dating apps, online marketplaces, […] video games with user interaction [… and] website forums” among many other online services. Categories of responsibilities will be created with the strictest provisions applying to companies such as Facebook, Instagram, Twitter and TikTok with lower categories applying to less powerful and smaller companies.

Under this forthcoming legislation, Ofcom, the UK’s media regulator, will be able to distribute fines to big tech companies such as Facebook for any failure to protect users. These fines will be the more damaging out of either £18m or, 10% of the offending company’s annual global revenue. In addition, Ofcom will have the power to pressure these companies to prevent and remove imagery relating to child abuse, including from encrypted messaging platforms such as WhatsApp. One way of doing this will be through requiring such companies to publish audits detailing what they have done to prevent harm to users. According to TechCrunch, the affected companies will bear the responsibility of covering Ofcom’s operational costs.  

What's the big picture effect?

Despite criticism from multiple angles, the Online Harms Bill and Ofcom’s forthcoming role represent a revolutionary first step towards the protection of digital rights globally. 

From a legal perspective, the Online Harms Bill will impact the rights of internet users in the UK. It will strive to balance the protection of individuals’ safety with the protection of freedom of expression via safeguarding provisions such as the ability to appeal content removal.

Nevertheless, multiple actors debate the true impact of the Bill. Whilst the government has promoted the bill with the successes it will bring to child protection, the NSPCC remains critical, desiring the law to go further “by threatening criminal sanctions against senior managers”. Furthermore, the Online Harms Foundation has stated that the legislation fails to tackle the smaller platforms where offenders are typically found. Others state that the measures will be easy to dodge. 

Evidently, lawyers will see increasing work in the data protection, criminal and human rights arenas following the introduction of the law. In addition, lawyers might require additional training on how to advise companies on complying with the new legislation.

From a commercial perspective, Ofcom’s new role will have a major impact on companies that heavily rely on the internet. Critics claim that the law will stifle innovation in the big tech sector in the UK who will fear large fines. It is claimed that start-ups and smaller competitors will be disproportionately impacted while more dominant companies will be able to survive heavy penalties. Those who support the breakup of big tech are pleased with the prospect of holding such companies to account, with potential fines reaching into the billions, thus having a greater impact than those stipulated by other internet regulating legislation such as GPDR. Law firms will undoubtedly have to assist clients in navigating these new measures.

Once the Online Harms Bill is enacted, the government will have to do a great deal to prove to stakeholders from all areas that it can do a better job at regulating the internet than the companies that have taken it upon themselves to do so for the past 15 years.

Report written by Edie Essex Barrett 

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