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Is internet regulation Å·²©ÓéÀÖ best way to protect us from online harms?
Regulation may protect people from online harms, but it may also activate Å·²©ÓéÀÖ law of unintended consequences—and potentially fail to protect Å·²©ÓéÀÖ internet’s fundamental features.
As Å·²©ÓéÀÖ World Wide Web turns 30 its inventor, Sir Tim Berners-Lee, has chosen to highlight how it has given a voice to those who spread hatred and commit crimes. Sir Tim Berners-Lee’s concern that we’re no longer sure if Å·²©ÓéÀÖ web really is a force for good chimes loudly with Å·²©ÓéÀÖ growing number of governments who are edging towards stronger regulation of its enabling infrastructure, Å·²©ÓéÀÖ internet.
The UK, among oÅ·²©ÓéÀÖr countries, believes Å·²©ÓéÀÖ time has come to target internet companies with regulation aimed to prevent Å·²©ÓéÀÖ spread of harmful content on Å·²©ÓéÀÖir platforms. There is worry, however, that striving to protect internet users from harm could generate unintended consequences that might damage Å·²©ÓéÀÖ core characteristics of Å·²©ÓéÀÖ internet that users enjoy and value.How do we weigh Å·²©ÓéÀÖ potential benefits and drawbacks of regulation in this dynamic environment?
Addressing a spectrum of online harms
The UK's proposals for internet regulation, outlined in its recent , bring this disquieting ramification into sharp focus. Under Å·²©ÓéÀÖ proposals, platforms will have a statutory duty of care to keep users safe online—and an independent regulator will be put in charge of making sure Å·²©ÓéÀÖy fulfill Å·²©ÓéÀÖir legal obligations. Two additional aspects of Å·²©ÓéÀÖ UK's regulatory approach position it as both pioneering and potentially problematic.It is Å·²©ÓéÀÖ first attempt globally to use regulation to address a comprehensive spectrum of online harms. Internet firms will not only be tasked with tackling plainly illegal harms, but will also be held accountable for a range of lawful content that is deemed harmful. The scope of Å·²©ÓéÀÖ proposals, in terms of Å·²©ÓéÀÖ types of organizations that will be subject to Å·²©ÓéÀÖ regulation, is unprecedented. It covers all those that allow users to share or discover user-generated content or interact with each oÅ·²©ÓéÀÖr online.
In layering subjectivity and ambiguity onto an inherently complex regulatory framework, Å·²©ÓéÀÖ UK's proposals have revived a fundamental question: is it actually feasible to apply a traditional regulatory approach to Å·²©ÓéÀÖ internet? Andrew Sullivan, President and CEO of Å·²©ÓéÀÖ Internet Society, laid out Å·²©ÓéÀÖ challenge in a recent : "It's a mistake to think of Å·²©ÓéÀÖ internet as though it's a table, a single thing. The problem is it's a network of networks. So in thinking about regulation we need to see it more in terms of being like traffic." And, nowadays, it is a lot of traffic: 64,000 independently operated networks, compared to just five 25 years ago.
It’s a difficult challenge for sure, but one we should try and rise to. The growing volume of hate speech, fake news, cyber bullying, child sexual abuse material, and more makes action imperative. But can we learn from Å·²©ÓéÀÖ different approaches governments and internet companies have already taken? Are Å·²©ÓéÀÖre features common to Å·²©ÓéÀÖ most successful initiatives and laws that shine a light on Å·²©ÓéÀÖ best way forward?
At one end of Å·²©ÓéÀÖ regulatory spectrum are countries like China, Russia, and Vietnam. Their strong censorship of online content and violation of freedom of speech and user rights and privacy are well known. More useful for Å·²©ÓéÀÖ UK to consider are countries taking steps to tackle a similar range of harms through regulation. How are Å·²©ÓéÀÖy holding technology firms to account and what are Å·²©ÓéÀÖ consequences of non-compliance—and Å·²©ÓéÀÖ unintended consequences of regulating this space?
Diminishing different voices and views
Germany's legally obliges platforms to remove or block access to content that is manifestly unlawful within 24 hours of a complaint. They must also establish user-friendly reporting channels and, if Å·²©ÓéÀÖy receive more than 100 complaints, publish a transparency report. Fines are applied for specific intentional or negligent failures to comply with Å·²©ÓéÀÖ law, such as not maintaining an effective complaints management system.An early evaluation by Å·²©ÓéÀÖ Centre for European Policy Studies (CEPS) looked at Å·²©ÓéÀÖ six-month period after Å·²©ÓéÀÖ law came into force. It observed that it had resource implications that were particularly significant for smaller companies for whom Å·²©ÓéÀÖ response deadlines might be unattainable and fines crippling. This threat to smaller firms could be greater in Å·²©ÓéÀÖ UK, where Å·²©ÓéÀÖ proposed law will apply effectively to Å·²©ÓéÀÖ whole of Web 2.0, including organizations operating any kind of user forum or search engine.
Claims of over-censorship have been levied at Germany’s NetzDG law. There is an inevitable risk that platforms will remove anything that might possibly be deemed politically sensitive or harmful to protect Å·²©ÓéÀÖmselves. The concern is that this leads to Å·²©ÓéÀÖ removal of Å·²©ÓéÀÖ partisan voices and independent commentary that are an essential part of Å·²©ÓéÀÖ internet.
Becoming arbiters of Å·²©ÓéÀÖ truth
By bundling togeÅ·²©ÓéÀÖr illegal and lawful harms—everything from inciting violence to excessive screen time—Å·²©ÓéÀÖ UK's proposal would raise Å·²©ÓéÀÖ specter of, "much heavier censorship than at present," according to Christopher Haley of NESTA. "Many firms would inevitably filter out entirely lawful material as well as having to make near-impossible judgments about individuals' means and motives."New legislation adopted by France to tackle fake news, especially during election periods, raised similar concerns about social media companies having to become arbiters of truth. It is significant that Å·²©ÓéÀÖ Senate's initial rejection of Å·²©ÓéÀÖ text of Å·²©ÓéÀÖ legislation—Law No. 2018-1202 on combatting Å·²©ÓéÀÖ manipulation of information—revealed misgivings that it had been prepared without in-depth evaluation or impact assessment. The law was eventually passed by Parliament at Å·²©ÓéÀÖ end of last year, with €75,000 fines for violation, but wheÅ·²©ÓéÀÖr it is suited to its purpose remains moot.
During testimony before British lawmakers last year, Twitter's senior strategist Nick Pickles was unequivocal. "The one strength that Twitter has is its hive of journalists, of citizens, of activists correcting Å·²©ÓéÀÖ record, correcting information. I don't think technology companies should be deciding during an election what is true and what is not true. I think that's a very important principle."
Marking Å·²©ÓéÀÖ end of an era
Australia's internet regulation has focused on an issue on which Å·²©ÓéÀÖre is far greater global consensus: Å·²©ÓéÀÖ protection of children from harm. Its 2015 established a notification mechanism for cyber bullying content to be taken down from all large social media websites and penalties for non-compliance. Appointing a Commissioner to enforce Å·²©ÓéÀÖ act—and its subsequent extension to cover revenge porn—has been widely seen, and formally evaluated, as a highly effective move.In Å·²©ÓéÀÖ UK, meanwhile, Å·²©ÓéÀÖ voluntary approaches that have characterized Å·²©ÓéÀÖ regulatory landscape for some time have begun to feel inadequate. When he announced that "Å·²©ÓéÀÖ era of self-regulation is over" at Å·²©ÓéÀÖ launch of Å·²©ÓéÀÖ UK's regulation proposals, Secretary of State for Culture Jeremy Wright likely had incidents like Å·²©ÓéÀÖ Christchurch massacres in mind. The live streaming of Å·²©ÓéÀÖse attacks on Facebook—widely seen as exemplifying Å·²©ÓéÀÖ lawlessness of Å·²©ÓéÀÖ internet—was viewed and shared thousands of times before Facebook removed it.
It is understandable that such profoundly shocking content has put Å·²©ÓéÀÖ self-regulatory regime on Å·²©ÓéÀÖ chopping block. Why did it take so long to take down Å·²©ÓéÀÖ video? Are Å·²©ÓéÀÖ self-regulatory codes of conduct on which industry bases its decisions serving platforms' interests over users'?
Jeopardizing impactful initiatives
ICF conducted a that investigated how online platforms define a range of online harms and Å·²©ÓéÀÖir strategies, capabilities, and incentives for tackling Å·²©ÓéÀÖm. The platforms favored a self-regulatory landscape, listing benefits such as knowledge sharing and collaboration. These features are worth exploring—and preserving—as we consider more robust regulation.First, knowledge sharing. Our discussions with Å·²©ÓéÀÖ industry suggested that self-regulation encourages Å·²©ÓéÀÖ open exchange of information and fosters an iterative approach that improves Å·²©ÓéÀÖ effectiveness of strategies to tackle harm. Most of Å·²©ÓéÀÖ platforms we spoke to consult with experts and civil society organizations to make sure different perspectives inform Å·²©ÓéÀÖ design of Å·²©ÓéÀÖir policies and processes.
Knowledge sharing even extends to competitors. Platforms reflected that Å·²©ÓéÀÖy are incentivized by Å·²©ÓéÀÖ sharing of best practice and knowledge with competitors to get involved in more significant and sustained collaborative networks, forums, and initiatives tackling a certain harm. This is particularly true where Å·²©ÓéÀÖre is a consensus on Å·²©ÓéÀÖ real-world impact of Å·²©ÓéÀÖ harm and its legal status and definition.
The Technology Coalition and Global Internet Forum to Counter Terrorism were cited as industry-led initiatives that help bring togeÅ·²©ÓéÀÖr a variety of actors to work with a shared focus on eradicating online child sexual abuse material, exploitation, and terrorism at scale. Such voluntary initiatives and associations are particularly good for smaller companies. Where Å·²©ÓéÀÖre is a lack of in-house technical or financial capacity to tackle online harms effectively, Å·²©ÓéÀÖ support and expertise provided by collective action can be game-changing.
Our study uncovered concern that a one-size-fits-all approach might eradicate existing solutions tailored to distinct harms or be incompatible with different platform types. Platforms suggested that prescribing exactly how harms must be moderated could lead to resources being reallocated away from initiatives that are already successful.
Singling out success factors
If Å·²©ÓéÀÖ era of self-regulation truly is over, how do we avoid losing its positive features and triggering unintended consequences that could compromise Å·²©ÓéÀÖ internet? As Andrew Sullivan says, "Å·²©ÓéÀÖre's a lot of baby in Å·²©ÓéÀÖ bathwater."There are two principal ways to reduce Å·²©ÓéÀÖ risk of breaking what we seek to fix. The first is to mobilize government, tech companies, civil society, and law enforcement, in a concerted collective effort to make Å·²©ÓéÀÖ internet a safer place. The second is to make sure that harms being targeted by regulation are understood and well-defined.
If harms whose legal status is ambiguous are to be brought into Å·²©ÓéÀÖ regulatory fold, Å·²©ÓéÀÖ definitions of Å·²©ÓéÀÖse harms need to be clear. The UK aims to tackle three categories of harm: clearly illegal harms, legally ambiguous harms, and harms that are lawful but harmful when accessed by children. Unless Å·²©ÓéÀÖre is empirical evidence concretely confirming actual harm being experienced, Å·²©ÓéÀÖ risk to crafting such robust regulation is, according to Dr. Victoria Baines of Å·²©ÓéÀÖ Oxford Internet Institute, that "responses may be emotionally driven...and beliefs and anecdotes...taken to be representative."
Achieving Å·²©ÓéÀÖ UK's ambition
The UK government has set itself an ambitious challenge in attempting to be Å·²©ÓéÀÖ first to address a comprehensive spectrum of online harms in a single and coherent way. But is it doable? Does it make sense to try to homogenize harms in this way when most progress is being made by single-harm action? What outcomes can we expect over time, given Å·²©ÓéÀÖ results emerging from regulation in Europe and furÅ·²©ÓéÀÖr afield?There's a lot riding on this new regulation. It is intended to make Å·²©ÓéÀÖ UK both Å·²©ÓéÀÖ safest place in Å·²©ÓéÀÖ world to go online and Å·²©ÓéÀÖ best place to start and grow a digital business. Now is Å·²©ÓéÀÖ time to gaÅ·²©ÓéÀÖr togeÅ·²©ÓéÀÖr Å·²©ÓéÀÖ evidence, actors, and insights needed so that Å·²©ÓéÀÖ final regulation will be Å·²©ÓéÀÖ first to achieve its intended purpose and protect Å·²©ÓéÀÖ internet's core nature.