Trade Talks with the US Could Scupper the UK’s Online Harms Bill

09 September, 2020 

It has been over a year since the UK government released its Online Harms White Paper, which laid out proposals for how the government might better protect people from illegal and harmful content online. Since releasing the paper, the government has been working on an Online Harms Bill, to put some of these proposals into practice.

But progress on this bill has been slow. A recent report from the House of Lords’ Democracy and Digital Committee said the bill might not come into effect until 2024, as the government has been slow to put together a draft bill.

And now fears are emerging that the bill could be neutered by trade talks between the UK and US, as the UK seeks new trade terms with the US post-Brexit.

Will platforms be let off the hook?

The Online Harms Bill would represent a significant change in how the likes of Google, Facebook, Twitter, Snap and TikTok are regulated in the UK. Currently these platforms are largely self-regulated, but the government has said it intends to appoint Ofcom as an online harms regulator. And Ofcom CEO Melanie Dawes says she would consider suspending social platforms, or handing out heavy fines, if they were found to have breached the new laws.

While the current US administration has also shown a willingness to take on big tech, it takes a different stance to the UK towards online harms. President Trump has hit out at platforms like Twitter which have hidden his posts for containing violent content. And he has accused social platforms of using policies on harmful content and political advertising to silence conservative voices.

Documents released by the US suggests it might try to water down this bill, as part of trade negotiations with the UK government. The Office of the United States Trade Representative, a government agency which advises the president on trade policy, has said that one of its objectives is to “establish rules that limit non-IPR (intellectual property rights) civil liability of online platforms for third-party content, subject to the Parties’ rights to adopt non-discriminatory measures for legitimate public policy objectives or that are necessary to protect public morals.”

Jake Dubbins, co-founder of the Conscious Advertising Network (CAN), said the negotiations have opened a window for tech companies to exert pressure on the UK government. “ We’d probably be fools to think those regulations won’t be part of discussions behind closed doors,” he said.

Dubbins’ fears are shared by others. Clean Up the Internet, a lobbying group focused on online harms, says that provisions which protect US tech companies from foreign regulation were included in last year’s United States-Mexico-Canada trade agreement, and also in a recent deal with Japan. And Labour MP Chris Elmore raised the issue in parliament last week, questioning the compatibility of UK-US trade objectives with the UK government’s proposed legislation on online harms.

Political considerations at play

The UK government, for its part, claims it is still committed to the Online Harms Bill. Greg Hands, the minister of state for the Department of International Trade, told Mr. Elmore that the government “stands by our Online Harms commitment, and nothing in the US trade deal will affect that”.

And the Department of International Trade has said in its own set of objectives for the US trade deal that it wants to “maintain [the government’s] ability to protect users from emerging online harms”.

And the US’s trade objectives do give scope for the UK government to regulate in cases where it is necessary to “protect public morals”.

But the Open Rights Group (ORG), a UK-based organisation that campaigns on digital rights issues, says it is unclear whether the Online Harms Bill could be defended under the public morals exemption.

“In our view, regulating online harms should not be linked to trade negotiations but examined on its own merits,” said the ORG.

CAN’s Dubbins said he is hopeful that public pressure on the government will mean that the Online Harms Bill does eventually get passed. But he added that it may be delayed for political reasons.

“The cynic in me says that the bill will not be published before the US election as any UK bill that specifically calls for the regulation of political advertising in the UK will of course resonate in the US,” he said. “Without that regulation, politicians can say what they like in adverts without any fact checking and no legislation can stop them and currently nor will most of the platforms.”


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