[Guest Post] CREATe/BIICL conference report: Mapping Platform Regulation in the UK

On Wednesday 26 February, the BIICL hosted a half-day conference convened by CREATe (previously trailed on this blog) to discuss new empirical research on IP litigation and platform regulation in the UK. This GuestKat's Kemp Little colleague, Rob Vile, was there for the platform regulation portion and reports as follows: 

Last Wednesday I went along to the British Institute of International and Comparative Law to see a group from CREATe, the UK Copyright and Creative Centre based at the University of Glasgow, led by Professor Martin Kretschmer, launch a new project which aims to map the regulation of online platforms in the UK.

In the first part of the evening, Prof. Kretschmer, along with his colleagues Prof. Philip Schlesinger, and Dr Ula Furgal, presented the findings of the first stage of the project, which asked key questions including "How do we map an emerging regulatory field?"; "How do we respond to the challenges presented?" and "How will future regulation address emerging online harms?".

Prof. Kretschmer first set out how the project itself represents a current trend towards regulatory activism, which is fed into by a range of factors. On the one hand, economic concerns are developing around competition in the market for online platforms, and the amount of tax paid (or not paid) by the biggest actors in the field. Equally, the project reflects political drivers, including increasing concerns in relation to the media and fake news, divisions in public culture, and the impact of social media on young people growing up as digital natives.

On top of this range of socioeconomic factors, Prof. Kretschmer stressed that it’s important not to lose sight of what is actually being regulated. Regulation of online platforms doesn’t concern the movement of goods and services as much as it does "some rooms with lots of servers" – and servers which are outside of the UK, challenging the traditional view of state sovereignty. Similarly, the project is responding to changes in the economic organisation of societies, as traditional marketing models are replaced with the sale of users’ data. 

The legal starting point for these issues is to assess the liability of intermediaries, which is currently protected on both sides of the Atlantic under the 'safe harbo(u)r' of the US Digital Millennium Copyright Act 1998, and the eCommerce Directive. However, recent challenges to this principle have signalled a trend towards pinning more responsibility on platforms, with Germany’s NetzDG Law and Art. 17 of the Copyright in the Digital Single Market Directive attributing liability for user posts to the platforms themselves (in certain circumstances).

In order to clarify how to tackle these issues when it is not necessarily clear who or what needs to be regulated, Prof. Kretschmer and his team reviewed eight reports from official sources in the UK to see how each one identified developing online harms. The review of the reports emphasised the breadth of the challenges facing any future regulator, with the issues to be addressed as diverse as over-collection of data, online bullying, IP infringement, fake news, mental health, terrorism, sexual exploitation, sale of illegal goods, and abuse of dominance, among many others. Combined with the fact that the majority of platforms are based in the US, this raises the question of whether a single body could meaningfully act as the coordinator of the range of activities necessary to regulate this area. 

In their concluding remarks, Prof. Kretschmer and the team noted that the UK Government’s response to their online harms consultation indicates that responsibility for the harms agenda will soon shift to Ofcom, without the creation of a new 'super-regulator' which has been suggested by some. They also pointed out that the trend for increasing online regulatory activities might suggest scope for existing regulators to cooperate on future initiatives. 

Following the presentation of the mapping study, there was a panel discussion featuring representatives from five UK regulators (Ofcom, the CMA, the ICO, the IPO, and the Centre for Data Ethics and Innovation), in which each gave their thoughts on the future of platform regulation. Some of the key takeaways to come out of the discussion were:

• One of the main challenges in regulating online conduct of users is how to balance freedom of expression (and the associated risks of extremism, trolling, etc.) with supporting innovation. 
• Regulation can be as much of an opportunity to make a positive impact as it is a challenge; new regulation in this area might steer online activity in a safer and more democratic direction. 
• The CMA is in communication with many other nations' agencies about online regulation, even though this might not be visible to the public. 
• The GPDR might offer a reference point for the scalability and proportionality of regulatory activities. 
• The diverse range of backgrounds and experiences of internet users poses a challenge in itself, but there is a definite need to focus on the exploitation of the most vulnerable users of online platforms. 

Overall, all the speakers present urged further conversations in this sphere, but were optimistic that the regulation of online platforms could be as much about positivity as about potential harms. It is clear that regulators face a daunting task in tackling the range of issues at play, but a lot of work is being put in to ensure that a capable and proportionate solution is established. Watch this space.

My thanks to the British Institute of International and Comparative Law for hosting the event, and for having me along.