Online Harms Get Real? Trump's Social Media Ban And The Future Of Social Media Regulation

• Published date: 25 January 2021
• Subject Matter: Media, Telecoms, IT, Entertainment, Privacy, Data Protection, Social Media
• Law Firm: BLM
• Author: Mr Steve Kuncewicz

On 15 December, the UK Government set out its proposals to regulate social media in the UK. With the aim of making the UK "the safest place in the world to be online", a new legal duty of care will be established as and when the Online Harms Bill eventually comes before Parliament. It aim is to force businesses with a significant online component to take more responsibility for the safety of their users and tackle a number of "harms" which could be caused by content or activity on their services, all of which will be overseen and enforced by OFCOM as an independent regulator. Transparency, trust and accountability will be at the heart of the new regime, and the latter is at the heart of the argument around when and how social networks should step in and take immediate action in relation to the conduct of its users.

It's fair to say that many view the new proposed legislation with some cynicism, and it's also fair to say that many of the larger businesses which could fall squarely within the scope of the UK's new regulatory framework will be lobbying as hard as they can to try and steer the discussion in their favour. Many social networks, for example, have often made it clear that they welcome further regulation and have engaged with Governments to demonstrate their own commitment to protecting their users. Many platforms are also still getting to grips with the impact that the changes to data protection law in the wake of the coming into force of the General Data Protection Regulation (GDPR) on their operations - Twitter, for example, was hit with a '450,000 fine from the Irish Data Protection Commission which saw private tweets exposed by a security flaw over a four-year period discovered in 2019, exacerbated by its failure to report its occurrence.

For 20 years, "information society services" within the EU have largely been shielded from civil or criminal liability for the actions of its users as a result of the operation of the E-Commerce Directive and the UK's E-Commerce Regulations, which brought those protections into force domestically. Essentially, if a social network is unaware and had no real role in the creation of or influence over content either created by or the behaviour of its users, then it is largely protected from any civil or criminal liability arising from it. Once put on notice of an issue, however, they must take "expeditious" action to remove it. The new Online Harms legislation is designed to be compatible with the EU's existing...