Can national regulation really grapple with questions of online harm that pay no heed to borders?

No regulator pleases everyone, especially when it is dealing with subjective issues like freedom of expression, as I know from personal experience

Will the likes of Facebook react positively to new regulatory requirements? (AFP)

Who knew that internet regulation would provide light relief from the Brexit saga?

And yet with the publication today of the government’s online harms white paper, that is precisely the case, as campaigners on both sides of the debate take the chance to lock horns over something unconnected to the EU.

It had been obvious for some time that more regulation was on the way. There have been too many scandals – from election interference to online bullying and the glorification of self-harm – for the government to avoid taking action.

Big tech firms such as Facebook and Google may have hoped to stave off external interference by establishing various initiatives designed, for instance, to tackle the spread of misinformation and the publication of harmful material. While those steps have proved too late, and too little, nascent schemes are likely to become important under the proposed regulatory regime, with companies required to show they are meeting a mandatory “duty of care” towards users.

The work will not, therefore, wholly go to waste. Judging by recent remarks by Mark Zuckerberg, governmental intervention may indeed be welcome (though the possibility of being held personally liable might not be).

Free speech campaigners have already expressed concern that new rules might hamper the ability of individuals to express legitimate views online. That anxiety is not to be sniffed at, although we may (fortunately) be some distance from the kind of case which has seen a British woman arrested in Dubai for calling her ex-husband’s new wife a “horse” on Facebook.

In reality, the right to freedom of expression has always been limited in one way or another. Even beyond the strictures of the law, there are all sorts of restrictions that we set by voluntary codes or social conventions. The classic example about causing a panic by falsely shouting fire in a theatre (which emanates from a 1919 US Supreme Court judgement written by Justice Oliver Wendell Holmes Jr) is a useful analogy for the online era, when so many fake claims are thrown around precisely to whip up disorder.

This isn’t to say that regulating online content is an easy task. For one thing, defining harm is not necessarily straightforward. In cases involving terrorist propaganda or images depicting physical abuse there may be few arguments, but what about a forum discussion around self-harm – where does mutual support between individuals looking for help end, and the encouragement of vulnerable people to inflict injuries on themselves begin? And this is without even getting into the minefield that is party politics.

Another key question will be exactly who it is that should be subject to new regulation. The internet is not a sector in and of itself, but rather a platform on which other sectors operate. Many of those are already subject to industry-specific regulation.

The media is an obvious example, with editorial content already subject to various voluntary or statutory codes (as well as to the common law). If the new regulator is to be confined to social media companies then defining its membership might be manageable, but when ministers talk blithely about holding “big tech” to account, it raises more questions than it answers.

For the public, a multiplicity of regulators is highly confusing – which is perhaps why there is sense in the idea that an existing body, Ofcom, could be given an expanded mandate; rather than yet another organisation being established.

Whoever gets the job will therefore have a tricky balance to strike. And frankly, however successful they are in achieving that, criticism will be inevitable – no regulator pleases everyone, especially not when it is dealing with subjective issues like freedom of expression. (I speak from personal experience, having worked in press self-regulation for nearly two decades.)

On the plus side, Britain has a strong tradition when it comes to practical regulation and there are reasons to think that a code of practice can be developed which defends relevant freedoms while at the same protecting internet users from abuse, misinformation and other harm.

But can we totally avoid the Brexit question in all this? There is a peculiar paradox that the internet – that great symbol of the globalised world – has been weaponised to particular effect by politicians promoting variations on a nationalist theme; and now here we are considering nation-based regulation of an international monolith.

Quite aside from the business considerations in all this – to wit, will regulation here make online firms less likely to invest in Britain? – there is a simple issue about the capacity of a UK-based regulator handling complaints about material posted by individuals living elsewhere to internet platforms registered beyond British shores.

This isn’t to say that international regulation is necessarily the answer (that brings with it interesting challenges of its own). Nevertheless, there can be little doubt that the development of an effective regulatory structure will require significant cross-border co-operation – just at a time when that notion is at its least fashionable.