Ofcom looks set to become the first UK internet regulator following the Government’s publication of its response to the Online Harms White Paper.  This is set against the backdrop of the progression through Parliament of legislation which was aimed at accelerating the appointment of a regulator for online harm, off the back of the White Paper published in April 2019.

With Sharon White’s departure and the arrival of Dame Melanie Dawes as new Ofcom CEO from March this year, it will be interesting to see how Ofcom approaches this potentially substantial expansion of its role, particularly in light of the increasing focus on the sharing of user generated content.

Ofcom’s new role will involve policing the new duty of care that will be imposed on companies towards their users, to ensure they have appropriate systems and processes in place to improve the safety of their users.   Ofcom will have the power to decide when and how companies have breached their ‘’duty of care’’ and choose punishment by fines or legal prosecution. The focus of its regulation of illegal content will be child exploitation, terrorist content and self-harm.

The companies that will fall within Ofcom’s remit will be those online providers that supply services or tools which allow, enable or facilitate users to share or discover user-generated content, or to interact with each other online. The parameters for the regulatory framework, including specifying which services are in scope of the regime, the requirements put upon them, user redress mechanisms and the enforcement powers of the regulator, are still to be set by the Government.

Whilst it is currently estimated that only around 5% of UK businesses would be caught by Ofcom’s new powers, the risk of this new regulatory framework and Ofcom’s powers is that it may lead to platforms taking a broader approach to suppression of user-generated content (with the associated negative impact on freedom of expression) than was necessarily intended.

The UK has forged ahead with regulating online harm.  However, the EU is catching up and we are expecting to see, during this year, movement on the new EU Digital Services Act which is aiming to upgrade the liability and safety rules for digital platforms and associated services and products.  Last year, we also saw the European Parliament approve new copyright rules for the internet which included making internet platforms directly liable for content uploaded to their site (with certain exceptions).

It is great to see the UK (along with Germany, Australia and some others) putting itself at the forefront in taking steps to regulate the online environment but there are still plenty of unanswered questions as to how the rules will be enforced in practice. In particular, it is worth bearing in mind that any new legislative proposals will need to comply with the usual rule of law principles, including that they must be sufficiently certain as to what is covered and must be workable in practice (factoring in the rights of those who will be affected by the legislation as to, for example, freedom of expression and the right to a fair hearing in respect of any enforcement measures).

To view our previous blog ''The end of ''self-regulation'': UK to introduce world first statutory duty of care to combat harmful online content'' click here

To view our Tech Regulation Series: The End of Permissionless Innovation click here

Struggling to keep track of digital regulation across the UK and EU? Check out our horizon scanning timeline (looking at recent and upcoming key regulatory dates) here