Social media: How much regulation is needed?

There is increasing concern about harmful content and
activity on social media. This includes cyberbullying and abuse, the
intimidation of public figures, disinformation, age-inappropriate content, and
material promoting violence and self-harm.

In a December 2017 report,
the Committee on Standards in Public Life said that social media was the “most
significant factor accelerating and enabling intimidatory behaviour in recent
years.” The Digital, Culture, Media and Sport Committee’s inquiry
into disinformation and ‘fake news’ said that the role of social media could
sometimes have “devastating” consequences.

A January 2019 report
by the Commons Science and Technology Committee noted the negative impacts of
cyberbullying, grooming and ‘sexting’ on young people’s health.

The National Society for the Prevention of Cruelty to Children
(NSPCC) has been campaigning
for an end to what it calls the “Wild West Web.”

What’s the current position?

Criminal law applies to online activity in the same way as
to offline activity. As the May Government noted in its 2017 Internet
Safety Strategy Green Paper, legislation passed before the digital age “has
shown itself to be flexible and capable of catching and punishing offenders
whether their crimes are committed by digital means or otherwise.” The Crown
Prosecution Service has published guidance
on offences on social media.

Various regulators play a role for certain types of online
activity, for example Ofcom, the Competition and Markets Authority, the
Advertising Standards Authority, the Information Commissioner’s Office, and the
Financial Conduct Authority. As the Lords Communications and Digital Committee
noted in its January 2019 report,
the internet is not quite an unregulated ‘Wild West’.

However, there is no overall regulator nor specific
content regulator. Under the e-Commerce Directive, social media companies are exempt
from liability for illegal content they host if they “play a neutral, merely
technical and passive role” towards it. Once they become aware of illegal material,
companies must remove or disable access to it.

For content that is harmful or inappropriate, but not
illegal, social media platforms self-regulate through “community standards” and
“terms of use.”

A duty of care for social media companies?

The e-Commerce Directive does not prevent EU Member States
from requiring online service providers to apply duties of care.

Lorna Woods, Professor of Internet Law at the University
of Essex and William Perrin, Trustee, Carnegie UK Trust have proposed a
regulatory regime, centred on a statutory duty of care, to reduce online harm.
They published a series
of blog posts in 2018, with a “refined” proposal
set out in January 2019. According to Woods and Perrin, social media service providers should be responsible
for the public space they have created, much as property owners or operators
are in the physical world.

A February
2019 NSPCC report drew heavily on the work of Woods and Perrin and argued
for a regulator to enforce a legal duty of care to protect children on
social media.

The Commons Science and Technology, Lords Communications
and Digital, and Commons Digital, Culture, Media and Sport Committees have all
called for a duty of care to be imposed on social media companies.

The Online Harms White Paper: A new regulatory framework?

The May Government published an Online
Harms White Paper in April 2019. This set out the then Government’s approach
for tackling “content or activity that harms individual users, particularly
children, or threatens our way of life in the UK.” According to the Government,
existing regulatory and voluntary initiatives had “not gone far or fast enough,
or been consistent enough between different companies” to keep users safe.

The White Paper proposed a single regulatory framework to
tackle a range of harms. At the core would be a statutory duty of care for
internet companies, including social media platforms. An independent regulator
would oversee and enforce compliance with the duty.

A consultation
on the proposals closed on 1 July 2019. The background
briefing to the October 2019 Queen’s Speech said that the responses were
still being analysed, but draft legislation on online harms would be forthcoming.

Reaction to the White Paper

The White Paper received a mixed response. In a June 2019
Carnegie UK Trust blog, Lorna Woods, William Perrin and Maeve Walsh said it was
a “significant
step in attempts to improve the online environment.” However, among other
things, they raised concerns about the scope of harms covered by the paper, as
well as its failure to name a regulator (for example Ofcom).

The NSPCC said that the White Paper was a “hugely
significant commitment” that could make the UK a “world pioneer in
protecting children online.” The Children’s Charities’ Coalition on Internet
Safety and the Children’s Commissioner also welcomed the proposals.

Others have not been so positive. In an October 2018 blog,
Graham
Smith, an internet lawyer, challenged
the idea that social media platforms should be viewed as having
responsibilities for a public space. In another blog
(April 2019), Smith argued that the White Paper’s “impermissibly
vague” concept of harm could cause problems for legislation.

Smith, and others such as the Index on Censorship, have also
claimed that a duty of care could
damage freedom of expression.

Further reading

• Social media: how much regulation is needed? House of Commons Library
• Impact of social media and screen-use on young people’s health, Fourteenth Report of Session 2017–19, House of Commons Science and Technology Committee
• Social Media – Guidelines on prosecuting cases involving communications sent via social media, cps.gov.uk
• Regulating in a digital world, 2^nd Report of Session 2017-19, House of Lords Select Committee on Communications