The UK's proposals to regulate online platforms: An update from the consultation

On 12 February 2020, the UK Government reiterated its commitment to creating one of the world's most ambitious regulatory frameworks for online content. In a joint publication, the Department for Digital, Culture, Media and Sport and the Home Office provided a summary of the feedback from last summer's consultation on the Online Harms White Paper. The White Paper proposed that platforms that allow users to share content or interact with one another would be subject to a statutory duty of care to keep users (and others) safe from "online harms".

Though the publication of the consultation feedback set out few concrete proposals, it did signal the direction of travel in many areas. The UK Government has said it wants to lead the world in regulating online harm and the proposed regulatory regime is far more comprehensive and wide-reaching than any equivalent regulatory regime in other Western countries. It borrows some concepts from financial services, but also others from telecoms and even health and safety legislation. This gives an indication of how the proposals may be applied in practice.

Speak to one of our key contacts to discuss the proposals and how it might impact your business.

Online harm legislation

The 6 key questions to consider


What happens if firms don't comply?

If firms fail to meet the duty of care, the regulator will have a range of sanctions at their disposal. This may include the power to impose civil fines (tied to metrics such as annual turnover or the volume of illegal material hosted), the power to require firms to rectify failings and possibly even powers to disrupt non-compliant platforms (including the potential for the regulator to require ISPs to block non-compliant websites). The proposal suggests that the regulator will use their powers in a tiered manner, only resorting to the most disruptive powers as a last resort.

The regime will likely include some kind of appeals mechanism against enforcement decisions, but its form is still being considered. Whether the regulator will accept "super-complaints" from certain designated bodies remains an open question, as does the issue of whether firms situated outside the UK will be required to appoint a "nominated representative" in the UK to assist in enforcing compliance with the regime.

One of the most controversial proposals in the Online Harms White Paper was the suggestion that firms may be required to nominate a senior executive with accountability for complying with the duty of care. Like the Senior Managers Regime in financial services, if the nominated executive did not take reasonable steps to ensure their firm complied with this duty, they could be personally liable for a civil fine (or possibly even criminal liability). Again, whether this proposal will be introduced remains an open question.

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