UK Should Hold Google & Facebook “Liable for Illegal Content” After Brexit

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A report published by the Committee on Standards in Public Life advises the UK government to bring forward legislation "to shift the liability of illegal content online towards social media companies" upon Brexit. While the report's focus is on the problem of online intimidation, the advice envisages the UK moving away from the safe harbors offered by the EU's E-Commerce Directive.

In order to operate and innovate in the online space, Internet giants such as Google, YouTube, and Facebook can’t be held immediately liable for everything that appears on their platforms.

If Google indexes an objectionable website, if someone posts an infringing video to YouTube, or if abusive or violent messages appear on Facebook, that is currently and quite rightly the responsibility of the person who put the offending content there.

However, once the platforms in question are advised by an appropriate authority that content posted on their services breaks the law, they are required to take it down. If they do not, they can then be held liable under local and EU law.

While essential for tech companies, this so-called safe harbor is a thorn in the side of copyright holders. They contend that platforms like YouTube abuse their freedoms in order to monetize infringing content while gaining advantages in licensing negotiations.

The protection offered by the E-Commerce Directive is a hot topic right now, one which necessarily involves the UK. However, with the UK due to leave the EU at 11pm local time on Friday 29 March, 2019, it will then be free to make its own laws. It’s now being suggested that as soon as Brexit happens, the UK should introduce new laws that hold tech companies liable for “illegal content” that appears on their platforms.

The advice can be found in a new report published by the Committee on Standards in Public Life. Titled “Intimidation in Public Life”, the report focuses on the online threats and intimidation experienced by Parliamentary candidates and others.

However, the laws that currently protect information society service providers apply to a much broader range of content, including that alleged to be copyright-infringing.

“Currently, social media companies do not have liability for the content on their sites, even where that content is illegal. This is largely due to the EU E-Commerce Directive (2000), which treats the social media companies as ‘hosts’ of online content. It is clear, however, that this legislation is out of date,” the report reads.

“Facebook, Twitter and Google are not simply platforms for the content that others post; they play a role in shaping what users see. We understand that they do not consider themselves as publishers, responsible for reviewing and editing everything that others post on their sites. But with developments in technology, the time has come for the companies to take more responsibility for illegal material that appears on their platforms.”

That responsibility should be increased immediately upon Brexit, the Committee recommends, via new legislation that won’t be hindered by the safe harbors offered by the E-Commerce Directive. Doing so will force online platforms to take more direct action to combat the appearance of illegal content, the Committee argues.

“The government should seek to legislate to shift the balance of liability for illegal content to the social media companies away from them being passive ‘platforms’ for illegal content. Given the government’s stated intention to leave the EU Single Market, legislation can be introduced to this effect without being in breach of EU law,” the report notes.

“We believe government should legislate to rebalance this liability for illegal content, and thereby drive change in the way social media companies operate in combatting illegal behavior online in the UK.”

How the process will play out from here remains to be seen but there is likely to be significant push-back from companies including the likes of Google, Facebook, and Twitter. Whether the “illegal content” they’re to be held liable for is deemed threatening, racist, or indeed copyright-infringing, matters are rarely clear-cut and there could be significant fall out if conditions are set too tightly.

Expect plenty of stakeholders to get involved when it comes to diminishing the protections of the E-Commerce Directive. To be continued…..

The full report can be found here.

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