Letter to DCMS Secretary of State Introducing a Draft Online Harm Reduction Bill

December 18, 2019

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William Perrin, Professor Lorna Woods and Maeve Walsh, who have led the Carnegie UK Trust work to develop a statutory duty of care for online harm reduction, have written to the returning DCMS Secretary of State, Rt Hon Nicky Morgan, to set out the need for urgency in bringing forward legislation in this area and to share their draft Online Harm Reduction Bill as a means to start this process. You can read the letter below.

 

 

Dear Nicky Morgan

 

INTRODUCING A STATUTORY DUTY OF CARE FOR ONLINE HARM REDUCTION: A DRAFT BILL

Congratulations on your re-appointment. Your welcome return will now enable rapid progress in reducing online harms. We would like to help you press ahead with that agenda, continuing our work with your officials and your predecessor that led to the adoption of the duty of care model.

We attach a draft Bill and explanatory notes that we have prepared to implement a regime for online harm reduction based on a duty of care, enforced by a regulator.  Our approach is a distinctively British one yet aligns with international norms. We hope that the debate on crucial aspects of legislation stimulated by our draft Bill will help your team as they develop the draft Bill promised in the last Queen’s Speech.

 

The Carnegie UK Trust work on a statutory duty of care for online harm reduction

We wrote to you back in August to introduce you to our work for Carnegie UK Trust (https://www.carnegieuktrust.org.uk/project/harm-reduction-in-social-media/)

We conceived of the duty of care enforced by a regulator approach before the government had announced its intention to regulate for internet harms.  Our work was endorsed by Select Committees in the Lords and Commons and informed the basis for the duty of care proposal of the Online Harms White Paper, launched by Jeremy Wright back in April.  We were encouraged that the government took this path, even if (along with many other stakeholders) we had some reservations about the government’s precise route. Our White Paper response set these out. You had suggested that you were driving the Department to produce a response to the White Paper by the end of the year. The election could well have delayed that but we hope you now have an opportunity to publish some policy proposals.  The commitment in the last Queen’s Speech to a draft Bill for pre-legislative scrutiny was welcome, but we note that the Conservative manifesto did not give a timetable for legislation.

We write to you now because we do not believe that there is any more time to waste. Taking quick, targeted action is necessary to limit the growing impact of harms online. We have drafted a Bill to implement an online harms regime in the absence of further thinking from the government and attach it for reference.

We hope that our work can focus public debate on vital elements of how a regime would work: our draft Bill details these in 60 clauses. The draft sets out a definition of a duty of care; who the duty applies to and risk management steps that a company should take; makes OFCOM the regulator and amends the Communications Act 2003 to grant them powers to take on these new responsibilities. OFCOM is tasked to work with industry; civil society; other regulators; the Secretary of State; and victims of harm in drawing up codes of practice.  There is scope we think for a paving measure to appoint OFCOM as Interim Regulator with a duty to prepare for new duty of care regime – that would give Parliament more confidence in how a regulator might work when it comes to legislation.  We set out our view in 2018 that OFCOM should regulate – it is not perfect but it could start quickly, has a track record of standing up to large companies, and has robust processes honed to work well over 15 years’ operation that could be adapted to online harms. A new regulator would have none of these attributes. We would be happy to talk to you and your officials at the earliest opportunity about our approach.

We are fortunate to have support for this approach from many NGOs, advocacy groups and academics with expertise in this area – including NSPCC, 5Rights Foundation, the Institute of Strategic Dialogue and the Royal Society of Public Health – who would also welcome prompt Government action.

 

A British model for regulation

Around the world there is great turmoil in how to regulate online harms. Many nations and trade blocs are struggling to find solutions that balance protection from harm with rights and innovation.  The UK has a unique chance in 2020 to lead the debate by putting flesh on the bones of a statutory duty of care approach. An approach that stands out internationally as the only systemic, proportionate, rights-based method focusing on how companies deliver online services safely.  Given the worldwide uncertainty about the right course of action on online harms, there is a tantalising opportunity for the UK to be a rule-maker in trade policy, rather than simply a rule-taker.  The Carnegie draft Bill, based on similar principles to the White Paper, sets out in detail for the first time the nature and scope of a regime.

As we prepare to leave the European Union, we are in a strong position to carve out a uniquely British model of regulation that is compliant with international law and systemic, rather than palliative. This emerging model embraces not just the duty of care, but also action by the Information Commissioner’s Office (ICO) and the Competition and Markets Authority (CMA) which, taken together, would increase competitiveness, support our national values and lead the world in enhancing free speech, protecting children and the elderly and improving national security.

This emerging model would:

  1. Protect children, preserve childhood online, export our approach – a statutory duty of care, supported by a code of practice drawn up with expert stakeholders would be central to protecting children online. Other regulatory components would bolster the duty of care, in particular the Age Appropriate Design Code. British academics and charities, led by the 5Rights Foundation are working with the United Nations on how the UN Convention on the Rights of a Child is applied internationally in a digital context.
  2. Attack scams and fraudsters who prey on the elderly – online fraud is now the most prevalent property crime in England and Wales. The social media platforms where so much of this crime happens should take responsibility for what happens on their service. Every pixel we see on a social media service is there as a result of a decision by the company that runs the service – about its terms of service, software and the resources it puts into enforcing and maintaining these. The Martin Lewis case in the UK shows that social media companies can play a role in reducing fraud, if they are made to do so. We have a huge opportunity to apply a statutory duty of care to a range of economic crimes including copyright abuse that effect consumers and SMEs online.
  3. Enhance and promote people’s rights and democratic engagement. We have a right to speak, but not if we use that speech to silence or intimidate others, or to manipulate democratic engagement. Human rights law gives governments positive obligations to help promote and protect speech. The duty of care regime we set out will require companies to have regard to human rights instruments when taking steps to reduce harm. OFCOM in its work is required to balance a broad spectrum of rights, not give primacy to one right over others. A duty of care regime would protect the rights of women, children, disabled people and those from gender and minority ethnic communities to speak without fear and participate fully in democratic debate. In many cases, this will only require social media companies to enforce their own polices in a timely and effective manner within a risk managed regime. Professor Lorna Woods has recently published a comprehensive paper on fundamental rights and a duty of care, which your officials have access to.  The Carnegie duty of care also has a focus on harms to the democratic process and we have submitted evidence to Lord Puttnam’s Select Committee, which is expected to reconvene in January.
  4. Level up for free trade – get ahead of the pack. We can influence the new rules for online services being made around the world over the next few years. Our major trading partners are considering new laws about social media and the internet. France, Germany, Singapore and Australia already have basic internet-specific laws in place. The EU is about to dive into years of complex argument about an EU regulator in the Digital Services Act. Ireland, India, Canada, The Netherlands and New Zealand are considering new law and Japan is under pressure to tighten theirs.  The UK proposal for a statutory duty of care on social media companies enforced by a regulator is the only comprehensive, straightforward package.  With OFCOM as regulator already obliged to be proportionate in its approach to SMEs and others, this will give British companies a headstart in designing services to be safe in any market without constraining innovation.
  5. Help British start-ups – ruthless focus on anti-competitive behaviour. The UK has a healthy innovation ecosystem that underpins new markets. Anti-competitive behaviour by the big tech companies is becoming a huge concern. The Furman Review for the CMA made the world-leading suggestion of structurally opening-up the tech platforms to allow competition in. The ICO and the CMA are studying the digital advertising market that funds the biggest operators. Government should strongly support these regulators if action is needed and study the cross-over to online harms.
  6. Champion the rule of law online. The UK, thanks to action by your predecessors is probably the only country where there is concerted, effective action underway to tackle the full swathe of issues caused by largely unregulated tech companies. Across the developed world, regulation is becoming the new cost of doing business online and Britain should have the best system: effective, but proportionate. Being regulated here should be a badge of entry to other markets – the UK should be the logical, efficient place for companies to design products and services.

 

It is in this spirit that we commend our draft Bill on Online Harm Reduction to you as an early but vital step in delivering on these aims. The UK has an unprecedented opportunity here to lead the world, while protecting all its citizens from the risk of experiencing harm online. We hope that you will seize this opportunity and we stand ready to assist in whatever way we can.

 

We are copying this letter to the Home Secretary.

 

William Perrin (Carnegie UK Trustee)

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

Maeve Walsh (Carnegie UK Trust Associate)

CONTACT: [email protected]