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The UK Government published its ‘Online Harms White Paper’ on 8 April.

How will it affect our business?

The paper recommends establishing a new regulatory framework for organisations who ‘allow users to share or discover user-generated content or interact with each other online.’ The paper acknowledges that this is a broad range of organisations and a new regulator – which may be a new or existing body – is advised to take a ‘risk-based and proportionate approach’ to compliance and enforcement, with an initial focus on large scale platforms or where there are known issues with ‘serious harm’.

A new statutory duty of care will be introduced, and a code of practice will aim to set out clear expectations on the practicable steps organisations must take to counter ‘harmful content’.

The new UK regulations will also apply to overseas companies and the consultation process will consider whether ISP blocking could be used to enforce compliance. Other enforcement measures could include civil fines and senior management liability; criminal liability is also being considered.

How will the regulator be funded?

The Government intends the regulator to be cost neutral and organisations whose services are in scope are likely to be charged a fee. This could follow a similar model to the funding of the Information Commissioner’s Office where the registration fee is based on the number of employees and annual turnover.

Monitoring content

There are initial concerns over how ‘harmful content’ will be defined; the paper cites content and activity that generally isn’t illegal, including the publishing of disinformation and the abuse of public figures. The possible impact on free speech has (perhaps rather obviously) been raised, with a risk that publishers will become overly risk-averse in removing content.

For clients with user forums and the facility for user-generated content, the paper states that companies will not be compelled to undertake ‘general monitoring’ which it considers disproportionate and which would raise concerns over user privacy, although ‘specific monitoring’ may be mandated where, for example, there is a threat of terrorism, or to the security or safety of children.

Next steps

The paper is open for consultation over the next 12 weeks. No date has been set for when the legislation is expected.

If you require further information about anything covered in this briefing note, please contact Paul Jones or David Morgan, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2019

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