UK Committee Report recommends shift in liability for illegal online content

This article was first published on Digital Business Lawyer on 9 January 2018.

The Committee on Standards in Public Life presented its report on ‘Intimidation in Public Life’ to the UK Government on 13 December 2017, setting out a package of recommendations for addressing the ‘intimidatory, bullying and abusive culture matters’ that politicians face in particular via social media. The Report, which results from Prime Minister Theresa May’s invitation of July 2017 to the Committee to review the intimidation of Parliamentary candidates, recommends inter alia that Government should legislate to shift the liability of illegal content online towards social media companies; that social media companies must develop and implement automated tools and user tools to identify and tackle intimidatory content posted on their platforms, and do more to prevent users being inundated with hostile messages; and that Twitter, Facebook and Google must publish UK- level performance data on the reports they receive and the percentage of reported content that is taken down.

The Report states that Government should legislate to ‘rebalance’ the liability for illegal content towards social media companies, in order to ‘drive change in the way social media companies operate in combatting illegal behaviour online in the UK.’ Will Richmond-Coggan, social media litigation specialist at Pitmans Law, believes that a fairer legislative balance could be struck in this area. “If there were to be legislation introduced to strike a more appropriate balance between the responsibility of the author/publisher on the one hand, and the host on the other, it should be something which pays proper regard to the serious practical difficulties which large website operators would face in policing the content which they host, and indeed the challenges in terms of resource and capability which much smaller website operators might face were the legislation to be of a ‘one size fits all’ variety, as we have seen with the burdens that small businesses are facing in adapting their processes to comply with the GDPR,” explains Richmond-Coggan.

The Report also states that online platforms such as Facebook, Twitter and Google should take more responsibility for illegal content on their platforms as ‘they play a role in shaping what users see.’ Gregor Pryor, Partner at Reed Smith, notes that there is a working example of government legislating in this way already in Germany. “Here, social media companies are required to act expeditiously when notified of certain types of content. The real question should be the extent to which social media companies are required to release information about users who, by their conduct online, contravene other laws. This brings other legal areas into play; most notably, data privacy regulation,” adds Pryor. “There is an argument that a better rebalancing of liability would be achieved by enabling a faster and more direct route to users, so that they would be discouraged from trolling and abusing others online.”

The Report also finds that the current E-Commerce Directive, which it states is largely responsible for social media companies’ lack of liability for the content on their sites, is out of date and that the time has come for such companies to take more responsibility for illegal material that appears on their platforms.