Regulating Online Behaviour: The First Half of 2019

Written by Sophie Hey, Policy Advisor at Valideus

During the first half of 2019 three reports on combatting harms and wrongdoing online were published:

  • The UK government’s White Paper on Online Harms
  • The EUIPO Blockathon Forum
  • The UN High Level Panel on Digital Cooperation

As we enter the second half of 2019, we provide an overview of these reports which each asked:

  • Who should be responsible for combatting harms and wrongdoing online?
  • Do changes need to be made to ensure the appropriate stakeholders are responsible for combatting harms and wrongdoing online?

UK White Paper on Online Harms

The UK government published a White Paper on Online Harms (the White Paper) in April 2019. This White Paper was lauded as the first attempt to develop a unified regulatory scheme to address illegal and harmful content online. Notably, the White Paper proposed a new statutory duty assigning more responsibility to companies that provide services or tools that allow, enable or facilitate users to share or discover user-generated content, or interact with each other online.
Mimicking the extraterritorial reach of the General Data Protection Regulation (GDPR), the White Paper suggests that the expanded duty of care applies more broadly, not just to UK companies or UK-based companies.

Of note, there is no hint of how far the jurisdiction of any legislation developed from the White Paper would extend. The potential duty of care is also vague, with a suggestion that the current standard of care be raised from the E-Commerce Directive (known or reasonably ought to have known of wrongdoing). However, not to a monitoring standard that would approximate a publishers’ standard of care.

Although it is unclear how exactly the White Paper anticipates achieving a balance between the two standards. What is clear is that the UK government wants to push more responsibility onto private sector actors for combatting harms and wrongdoing online.

Blockathon Forum

The European Union Intellectual Property Office (EUIPO) has continued with the Blockathon Forum this year, and on the 5th and 6th of June had a range of stakeholders participate in a workshop in Brussels. The Blockathon Forum started initially as a competition with competing teams proposing models on how blockchain could be used to combat counterfeit goods.

The winning proposal was then developed during the workshop into a preliminary pilot to track genuine goods. The goal of the pilot is to give genuine goods a physical and electronic identity in order to prevent them from being substituted with counterfeit goods. For the goods to move between each party in the chain, they must be verified physically, which would then be recorded on a blockchain.

Traditionally, law enforcement has been responsible for combatting anti-counterfeiting efforts. The use of track and trace models to combat anti-counterfeiting is not new. Many e-commerce platforms and brands have already started their own private blockchain or tracking system to reassure their consumers that they are receiving genuine goods —within the framework of law enforcement.

However, the Blockathon Forum is moving the onus on to brands to prevent or deter counterfeit versions of their products being manufactured and distributed. This is not an effort to diminish the role of law enforcement in anti-counterfeiting efforts; particularly given customs officers are one of the parties checking the goods for authenticity. Yet, it does indicate the expectations that the private sector takes preventative steps, rather than relying solely on law enforcement to manage the problem.

UN High Level Panel on Digital Cooperation

On 10th June the UN High Level Panel on Digital Cooperation (the Panel) released its initial report recommending that all stakeholders – civil society, private sector, governments – collaborate to govern the digital space. This report differs from the other reports mentioned; in that it calls for the United Nations to take a greater role in the management of the internet rather than pushing management to the private sector. In another sense, the report reflects the emerging battle between stakeholders to centralise management of the online space to themselves.

The Panel also foresees a role for the private sector, governments and civil society to work together for soft governance online. Perhaps unsurprisingly as a UN initiative, the Panel also recommends enabling digital equality and ensuring that human rights are being protected. In short, the Panel envisions the internet continue to be managed with soft regulation. Whether this utopian vision will be upheld is a separate issue, and questionable given the increased legislation from various governments regulating online behaviour in different jurisdictions around the globe.

It appears the goal of the Panel’s report is to remind the online community of the benefits of an unfragmented internet.

Next steps in regulating online behaviour

It seems certain that the private sector will be considered responsible for harms and wrongdoing online.

One perspective is that the private sector’s innovation and creativity has led to the problem of harms and wrongdoing online. Therefore, it is only appropriate that the private sector be held accountable for such actions. An alternative perspective holds that the private sector may be seen as a scapegoat: after all, it is not the private sector that is solely responsible for where the Internet has ended up today.

In summary, these reports and consultations show that, moving forward, we can expect governments to be drafting regulation that places greater responsibility on the private sector for managing the online conduct of individuals. We can also expect governments to establish jurisdiction over harms and wrongdoing online through individual citizenship. The implications beyond lower levels of reliance on self-regulation are unclear and will depend largely on the regulation drafted.

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