The Government of the United Kingdom (UK) has proposed a range of new measures in an effort to regulate and tackle online harms, set out in its Online Harms White Paper (White Paper) that has been published for consultation. Key features of the White Paper include proposals for the establishment of a statutory duty of care on companies for their users’ safety online; the appointment of an independent regulator to oversee and enforce the proposed measures; and extra-territorial application that will impose obligations on both UK-based and foreign companies worldwide.
The White Paper describes its purpose as follows:
This White Paper sets out a programme of action to tackle content or activity that harms individual users, particularly children, or threatens our way of life in the UK, either by undermining national security, or by undermining our shared rights, responsibilities and opportunities to foster integration.
The new regulatory framework proposed by the White Paper sets out express standards to guide companies in protecting the safety of users, balanced against the right to freedom of expression, especially in the context of harmful content or activity that may not cross the criminal threshold but can be particularly damaging to children or other vulnerable users. At its crux is the proposal to establish a new statutory duty of care on companies to take more responsibility for the safety of their users and tackle harm caused by content or activity on their services. It is intended that this duty of care will be overseen and enforced by an independent regulator, who will be given a suite of enforcement powers to take effective enforcement action against companies that have breached their statutory duty of care.
The proposed extraterritorial application is a notable feature. In sum, it would bind all companies – regardless of whether they are based in the UK or in a foreign country – that provide services to UK users to share or discover user-generated content or interact with each other online. This would therefore require all foreign companies that fall within the scope of the White Paper to comply with the same statutory duty of care that the regulatory measures would impose on UK-based companies.
In order to give effect to this extra-territorial application, the White Paper proposes three measures: (i) giving the independent regulator broad powers to take action against such services, such as the blocking of websites; (ii) requiring companies which are based outside the UK to appoint a nominated representative based in the UK or European Economic Area in certain circumstances; and/or (iii) forming relationships with international counterparts to put pressure on companies whose primary base is outside the UK.
In this regard, the White Paper states as follows:
The new regulatory regime will need to handle the global nature of both the digital economy and many of the companies in scope. The law will apply to companies that provide services to UK users. We will design the regulator’s powers to ensure that it can take action against companies without a legal presence in the UK, including blocking platforms from being accessible in the UK as a last resort. Where companies do not have a legal presence in the UK, close collaboration between government bodies, regulators and law enforcement overseas, in the EU and further afield, will be required.
We are also considering options for the regulator, in certain circumstances, to require companies which are based outside the UK to appoint a UK or EEA-based nominated representative … It is vital that the regulator takes an international approach. Where similar regulators and legal systems are in place in other countries, the regulator will lead engagement with its international counterparts. Having these relationships will support the UK’s ability to put pressure on companies whose primary base is overseas.
If adopted, this proposed extra-territorial application will have significant implications for a wide range of companies around the world that offer platforms or other services that can be accessed by UK users to share content or interact with other users. Such companies would be required to comply with the UK’s regulatory framework, in addition to their own domestic regulatory framework, and be subject to the enforcement powers of the independent regulator appointed by the UK government.
The White Paper is currently undergoing public consultation. A list of questions is contained in Annexure A of the White Paper. In respect of the proposed extra-territorial application, Question 13 of the listed questions reads: “Should the regulator have the power to require a company based outside the UK and EEA to appoint a nominated representative in the UK or EEA in certain circumstances?”. The deadline for submissions is 1 July 2019.
The call for submissions is accessible here.
The Online Harms White Paper is accessible here.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].