UK: Regulating Digital Services – UK Parliament Weighs In

The Select Committee on Communications of the House of Lords (Committee) published a report discussing UK regulation of 'digital services facilitated by the internet'.

We summarise some of the key recommendations of the report, which was published on 9 March 2019:

1. A central regulatory body called the Digital Authority should be set up to co-ordinate internet regulation.

2. All future internet regulation should be informed by 10 common principles:

  • Parity: ensuring online and offline regulation offer equivalent protection for individuals.
  • Accountability: digital actors are to be held to account.
  • Transparency: powerful digital actors should be open to scrutiny.
  • Openness: facilitate innovation and choice for users.
  • Privacy: ensure that regulation closes the gap between policy and user expectations about data protection and data privacy.
  • Ethical design: ethical standards should be incorporated into the design of technology and delivered by default.
  • Recognition of childhood: protect children and ensure accessibility.
  • Respect for human rights and equality: safeguard freedom of expression.
  • Education and awareness-raising: promote digital literacy.
  • Democratic accountability, proportionality and evidence-based approach: ensure that regulation is evidence based and prevents harm while balancing against the right to freedom of expression.

3. Digital service providers should:

  • Keep a record of the time each user spends using their service and which may be accessed by that user.
  • Provide each user a report on any behavioural data they generate or store for that user.
  • Provide each user with a statement explaining how algorithms are used to profile them, deliver content or drive their behaviour, if requested by that user.

4. Services should provide the maximum level of privacy and safety by default, especially concerning the sharing of data.

5. Controllers and processors of data should be required to publish an annual data transparency statement. This should explain the types of behavioural data they hold, how such data is stored, and how such data is processed.

6. A public-interest test should be introduced when assessing possible mergers between providers of digital services. This will sit alongside the existing tests the Competition and Markets Authority use when assessing possible mergers. The new test should focus on the accumulation of data in order to prevent the creation of data monopolies.

7. An additional duty of care should be imposed on online platforms to ensure that they have adequate risk management procedures in place. They must be able to deal with 'illegal content and other forms of online abuse, bullying and fake news'.

8. Ofcom should be given the power to investigate the effectiveness of the content moderation steps online platforms take. Persistent offenders should be fined. The Committee appreciates that content standards may not always be clear. It recommends that companies work with Ofcom to devise a 'labelling scheme for social media websites and apps'. This can be similar to the scheme used by the British Board of Film Classification.

The Committee also provided more general guidance:

  • The Information Commissioner's Office (ICO) should set out rules for the use of algorithms and publish a code of best practice for the use of algorithms.
  • Terms of service must be clear, accessible and understandable to users, especially where services are used by children.
  • The ICO should provide guidance to online platforms to provide greater choice to their users when deciding how and how much of their data is collected and used.
  • Online communications platforms should be subject to 'special obligations' to mitigate for harms to users, such as data misuse, and 'harms to society'.

Comment

In some respects, the report offers some novel recommendations. In other respects, the report repeats many themes and obligations that already exist under UK data protection and privacy law. It remains to be seen how practical many of the Committee's recommendations are, given the nature of how the internet operates. The report does, however, offer an interesting insight into the minds of UK legislators in the area of digital services regulation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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