December 10, 2019

The Statutory Duty of Care and Fundamental Freedoms

by Professor Lorna Woods (University of Essex, Professor of Internet Law)

In the discussions in recent months over the Government’s Online Harms White Paper, the concern as to how to regulate companies operating in the online environment without impacting on fundamental freedoms has been centre stage. The proposals set out in the Government’s White Paper appeared to many – including ourselves – to point too heavily towards a notice-and-takedown regime, enforced via a series of content-specific codes, rather than a systemic, risk-based approach that would bite at design and business operations level, such as that proposed by Professor Lorna Woods and William Perrin in their work for Carnegie UK Trust.

Even within a duty of care framework that is closer to the Woods & Perrin model than the Government’s, these concerns are likely to remain. In a comprehensive new paper, Lorna Woods addresses the question as to whether concerns about human rights preclude the imposition of the duty of care proposed through the Carnegie UK Trust work.

Her analysis starts with a review of the human rights framework from a British perspective and then considers how the various design techniques and business choices that may lead to the occurrence of harm – and therefore be relevant for consideration under a statutory of duty of care – could be assessed under a rights based perspective.

The paper delineates the scope of rights such as freedom of expression, privacy and non-discrimination in the context of the online environment and the extent of case law with regard to the Internet. It then moves on to look at the application to the statutory duty of care and how design features and processes might play a part in the mitigation of harms, with a particular focus on creation of content, dissemination of content, user engagement, complaints and take downs.

This paper represents another part of the extensive body of work being built up by Woods and Perrin to support the development of a statutory duty of care for online harm reduction and to help inform and support policymakers and Parliamentarians as they consider the proposals in the Online Harms White Paper. Our next contribution to this work will be the publication of a draft Bill to demonstrate the regulatory underpinning and design for the duty of care, the role of the regulator and the enforcement regime. We will use this Bill to continue our discussions and engagement with policy makers, campaign groups and Parliamentarians after the Election.