House of Lords - Media convergence - Communications Committee

Media convergence - Communications Committee Contents

Chapter 4: A safer internet

126. We set out in Chapter 2 our view that the impact of convergence is raising two core challenges for the model on which content standards regulation has been based. The second of these comes down to a concern about weakening jurisdictional leverage but also from the competing pressures to be taken into account in addressing that, including:

· Variations in public expectations;

· Striking the right balance between regulation and free speech;

· The public's appetite for personal responsibility;

· The reach of existing UK law;

· Proportionality;

· Practicalities and costs.

127. A unique aspect of internet content is that, while it may be difficult to extend regulatory jurisdiction to the many (often small and hard to track down) providers of content, access to that content is organised by a relatively small number of intermediary companies—principally the ISPs (Internet Service Providers) and major gateways to internet content such as Google and Apple. While such organisations do not necessarily exercise editorial control over the content to which they provide access, they do help users find and sort that content, and their commercial models depend on their success in so doing. They already adopt certain practices and rules themselves about the nature of the content they are prepared to carry or provide access to, but such codes are not necessarily reflective of UK social norms and expectations. We think, therefore, that they have an important responsibility to work with government and regulators here to help achieve our wider societal goals as far as the internet and access to its content are concerned, especially in creating a safer environment for children using the internet.

128. The UK, with the help of these intermediaries and other players, will have to think creatively about possible solutions. Certainly, a whole range of ideas have been put to us during this inquiry. For example, a number of players are exploring opportunities to cooperate with credit card companies and payment infrastructure providers to restrict flows of money to providers in breach of the law or regulatory codes.[55] However, with such well-established difficulties engaging comprehensively with content suppliers themselves, one consistent theme has emerged: the UK will have increasingly to seek cooperation from the larger and easier to identify intermediaries who make their money from offering access to content provided by third parties—in other words: the ISPs, search engines and other digital gatekeepers.

129. Of course, that is not the end of the story. In developing cooperative relationships with these players, it will be necessary to accept that conventional regulatory approaches are unlikely to work; it is not possible to licence intermediaries and impose detailed codes even if it were desirable to do so. However, this might not be a reason for despondency.

130. Major providers in competitive markets are often willing to cooperate voluntarily with open standards codes because they have the most at stake when their brands fail to meet the UK public's expectations. As Google put to us:

131. It must be remembered, therefore, that even if only major digital intermediaries are willing to uphold publicly-accepted standards, the concentration currently characteristic of the industries in which they operate means that in practice most UK consumers will benefit from the protections they introduce. According to Ofcom's most recent Communications Market Report, the four major UK ISPs account for over 85% of its market share,[57] and Google hit the headlines late last year when its share of UK search dipped to 89%, the first time it had been below 90% in five years.[58] If common, publicly-accepted standards will only be upheld by major digital intermediaries, protections for UK audiences will not be comprehensive, but they will not be far off.

132. In addition, while direct intervention in the standards they uphold might be possible in the case of some, if not all, of these intermediaries, it is not clear, at this stage at least, that it would be desirable or lead to the best outcomes. As Sarah Hunter, Head of UK Public Policy for Google, put to us:

133. As set out at the beginning of this chapter, the strong implication is that addressing the legitimate and growing concerns raised by content accessed over the open internet will require a host of competing pressures to be taken into account as set out above in para 126.

134. Meeting all of these challenges, in cooperation with digital intermediaries, will require a range of approaches to be developed and care to be taken in their implementation. There is unlikely to be a 'silver bullet'. Some helpful examples of initiatives taken up by digital intermediaries show progress has already been made:

· Content featuring child sexual abuse, for example, is black-listed by the Internet Watch Foundation (IWF) and voluntarily put beyond all our reach by internet service providers and other intermediaries;[60]

· The UK's four major ISPs (BT, Sky, TalkTalk and Virgin Media) have published a voluntary Code of Practice on parental controls and filters;

· Establishment and support for the UK Council for Child Internet Safety (UKCCIS).

135. These initiatives demonstrate real progress, albeit that a great deal of debate has emerged, particularly over parental filters and controls, over whether these measures go far enough and are sufficiently likely to be taken up by users. In addition, there is no consensus about mechanisms to remove criminal, defamatory and breach of copyright material. Without getting into the detail of these debates, it is our view that there is room for a more coordinated approach. Of course, we recognise the need for caution; involuntary regulation of young and dynamic markets risks stifling the creative and innovative services they might develop; and there was a strong, evident consensus around the view that self-regulation, therefore, represents the right way to proceed:

136. The validity of these perspectives is borne out to a great extent by important protections which a number of private enterprises have already introduced for their users without formal intervention. For example we heard from Google about the 'flagging' and review mechanism they have put in place on YouTube and from Facebook about the standards and processes they have introduced, including the innovative Social Reporting tool:

137. These developments are not isolated and clearly demonstrate that self-regulatory approaches to content standards can offer consumers' real protections online, and do so in ways which are both flexible and innovative. To date, however, self-regulation has mostly consisted of diffuse voluntary initiatives by individual private enterprises, not as concerted or coordinated action. In addition, they have generally focussed, understandably, on harm to children. However, while YouTube's terms, for example, include guidelines about inciting terrorism, across the range of digital intermediaries this is perhaps a less well developed area than it ought to be; and a coordinated approach should prompt more focus.

138. To date, Ofcom has not devoted a great deal of its attention or resources to the standards upheld by digital intermediaries or content providers on the internet more generally, nor has it had any statutory duty to do so. As a result its approach has been 'hands-off', suggesting in evidence that:

139. We recognise these difficulties but given that legitimate concerns associated with content accessed over the internet are pressing and only likely to grow, we suggest that a new approach could produce more effective results. This new approach would not involve regulation as we traditionally understand it (with statutes, rules and detailed external oversight), but would involve a more coordinated form of self-regulation of digital intermediaries—and where relevant the device manufacturers associated with them—to help ensure:

· progress continues to be made and at an acceptable pace;

· real accountability to the UK public in setting standards, and provision of a mechanism for their views and expectations to be heard;

· consistency, as far as possible, in implementation across the various providers.

As part of this new direction, Ofcom would be required to exercise a very different and more creative role than that of its traditional regulatory function: providing intellectual leadership, influence and coordination, rather than relying on detailed codes and rules. This new role should be reflected in Ofcom's general duties, supported by requirements to monitor the sector's progress in introducing effective self-regulation to cover key areas of concern.

140. The next communications Bill should establish a more pro-active role for Ofcom regarding the internet than has been the case to date, to be reflected in Ofcom's general duties.

141. Specifically, Ofcom should be required, in dialogue with UK citizens and key industry players, to establish and publish on a regular basis the UK public's expectations of major digital intermediaries such as ISPs and other digital gateways, specifically with regard to protecting UK audiences and their families when accessing content through digital intermediaries' services, covering for example:

· The scope of their responsibilities (given they are not always in direct control of the content to which they provide access);

· Appropriate processes for receiving complaints and subsequent redress;

· Any specific measures, such as access controls, content classification systems, or other actions which the UK public might expect them to take in protecting children from harmful material.

142. Creating a point of focus in the UK for a coordinated voice expressing the UK public's expectations of digital intermediaries will bring the various players and consumers together in a way which avoids the risks of the current approach which may result in individual initiatives with considerable merit but which as a whole might be rather sporadic, diffuse and most importantly unaccountable to the UK public at large.

143. In publishing the UK public's expectations of major digital intermediaries, Ofcom should also carry out periodic reviews to establish their current performance against them. Ofcom should have no sanction or reward for successful or insufficient action, not least because of jurisdictional problems of enforcement. Should these reviews reveal a major concern on the part of the UK public, which the industry repeatedly and without reason fails to respond to, Ofcom would then be required to advise the Secretary of State.

144. As Robert Madelin, DG Connect, European Commission put to us:

145. Taken together, the new framework we have set out in the last two chapters would assume an overall form along the lines illustrated below in Figure 3. We note that this visual representation of the framework may not seem simpler or more straightforward than the existing one it would substitute. In part this is right; we have not aimed for consistency or tidiness for their own sake. Instead we have tried to set out the next evolutionary stage of the content standards framework as we see it, responding to the most pressing challenges raised by convergence. We hope we have explained that these changes would have a significant impact in time on the ability of UK audiences to build expectations of the content they consume, and by extension on their ability to continue to place their trust in the framework that makes that possible.

146. Further, while our focus has been on the core challenges raised by convergence for the framework's treatment of TV and TV-like services and for content delivered over the internet, we are aware that its impact goes wider, in ways not reflected in our model or in Figure 3. In particular, we heard from RadioCentre that the radio licensing regime may not be sufficiently flexible to accommodate future changes, and creates barriers to the on-going success of the UK radio sector. While these considerations have not been our focus, it is likely that a more flexible co-regulatory structure such as the one we propose for TV and TV-like content could have wider application and should be considered elsewhere.

147. In concluding this chapter, we should make clear that we welcome criticism of the framework. In taking such a wide look at convergence and its impact on content standards, we have been able to see that some changes to the 'super structure' of the framework are, or will come to be, desirable. Great structural shifts, however, are bound to require further consideration, mindful of their logical implication and the knock-on effects they may have at a lower level in the framework.

FIGURE 3

Overview of our proposed UK framework for content standards regulation (changes highlighted in black text)