Social Media Regulation
Updated: Mar 25, 2020
The Government says Ofcom are to regulate Social Media in the UK.
This should not come as a real surprise given that very many and diverse organisations have been calling for such control. It is not just a case of controlling fake news but there have been some Social Media sites which it is alleged have been associated with in particular, teenagers self-harming.
As the partner of someone who works in adolescent mental health services it is all too easy to pick up on some of the difficulties which professionals in the area think might be caused by some forms of Social Media. As I say, that is simply to be added then to other problems. The question, however, of how to regulate Social Media poses some of the most fundamental questions in the regulatory field. The fact, however, that the task has been given to Ofcom does give us some clues as to what the Government may expect next in terms of regulation.
Whatever the outcome after the relevant legislation has been through Parliament picking up a brand new statute containing a framework for regulatory control is no easy matter. I can say that with some authority, given the fact that I was Secretary and Legal Advisor to the Cable Authority when it was set up in the mid-80s to regulate Cable and Satellite TV in the UK for the first time. The late and much lamented (in some quarters) presenter of the Today Programme called Brian Redhead once described Satellite Broadcasting as the acid rain of media. Social Media is getting much the same kind of treatment from a number of sources. The question, however, is how to regulate it and how effective can you be. That in turn, brings us to questions of the fact that regulation is not just about saying what you want but being able to enforce what you want.
In around 1993, I was asked through an intermediary to prepare a note for an unnamed sovereign power somewhere in the world concerning the regulation of the Internet. As I pointed out in that note and it is still true today, regulation of the Internet is not a feature just of what you put in the law or regulation; it is also a feature of how you prevent back door access and experience has shown that the Internet has a lot of back doors!
The whole process also highlights the old question of whether you have to use the old-fashioned Latin terms ex ante or ex post regulation. Do you try and tell them upfront what you want and expect them to comply or do you set general parameters of behaviour and regulate on a complaints driven basis?
Most of Ofcom’s work in recent years has been compliant driven regulation. They might disagree with that but that is certainly my view as an outsider. Yes, they do have investigations that start of their own volition but even I suspect the majority of those are prompted by the public or other people in the industry. The reasons for regulating this way are very many, a lot of which was associated with the enormity of the task and the expense that goes with it.
Setting up a panoply of licence conditions in advance of there being a problem which provide detailed rules would, given the flexible nature of Social Media services and the fact that they are constantly developing mean that really one is pushed towards ex post regulation. In other words, one sets the basic parameters and then punishes if, after a complaint they are shown not to have met the basically expected standards.
The reasoning in years gone by for exerting ex ante detailed regulation of certain TV channels i.e. the main terrestrial broadcast channels was that they are one click away from appearing in the countries living rooms. If one applied the same logic to Social Media then given that it is only one click from appearing anywhere in the home, one might get the feeling a fairly heavy-handed form of approach was required to meet the standards expected by the public. The problem is that given the Internet etc. and the way in which it works you simply would not be able to regulate on a total ex ante investigative basis. So, you are left with setting up codes and guidelines as there are for broadcasting today and then enforcing those probably as a result of complaints.
Even so, you are going to need a substantial number of people to do this.
Moreover, leaving aside questions of compliance with international obligations in respect of the regulation etc. (the Americans do not like the Internet being regulated) you are really going to be forced into a light touch regulatory scenario in the hope that your form of regulation does not stifle innovation whilst dealing with the kinds of problems that you need to get dealt with.
This is all difficult and it is going to require a very careful balancing act. To some extent, however, the devil will be in the detail. The detail will be up for grabs as the necessary legislation wends its way through the Parliamentary process. You can be sure that a lot of people will be wanting to ensure that they do not have responsibility if they are just mere conduits i.e. pipes through which messages pass and some form of parameters will need to be set on the harshness that can be imposed by Ofcom.
Somewhere in the Office of the Parliamentary draftsman there very probably exists a brief already from the Home Secretary or DCMS setting out what the Government thinks it wants. Some benighted soul will be sitting with a sheet of blank paper and a pen trying to work out the formulation for new effective legislation.
So it does not matter at the moment which side of the debate you come from or what your interest is all those who are stakeholders will need to mobilise to try and influence the legislation and having influenced the legislation will need to influence the codes and guidelines that will surely follow from Ofcom itself.
Broadcasting regulation (and as we do not regulate the printed word generally it is the best example we have got) depends if you read the codes and guidelines on a number of fairly simple and well established principles to which we have added from time to time the power to try and prevent things from reaching the public. The classic example of that is legislation put in place by Mrs Thatcher’s Government which permitted the authorities to ban the viewing of “red hot Dutch” in the United Kingdom. So, at one end you need to identify your nuclear deterrents and at the other end you need to provide day to day practical guidelines.
There may be a temptation on the part of Ofcom to in effect, delegate regulatory control to another body as it does with Television Advertising but one suspects that those issues all too high profile for it to do that.
So our advice to anybody who is interested in this field on whatever level at the moment is to start examining both lobbying and analysing whatever legislation will come out in draft and try to put or suggest amendments through members of Parliament which reflect their views.
Lobbying with this kind of issue is not just a matter of public relations it is also a matter of providing members of Parliament with specific proposed amendments drafted in that particularly stilted form that we reserve for legislation and which follow the tricky protocols in relation to Parliamentary drafting and how you present amendments.
If you want to talk to lawyers experienced in regulation, implementing new legislation and providing Parliamentary lobbying assistance by generating amendments then you should have a word with us.
One of our partners has provided much assistance to those who have tried to influence legislation in these sorts of areas with some measure of success.
Ted Mercer, Partner