Chapter 6: The Digital Authority
Challenges
227.We began our inquiry by asking how internet regulation could be improved, but it became clear that the more salient question was how regulation should respond to changes brought about by the digital world. The digital world presents significant challenges to regulation, in particular: its transnational character, the pace of change, a lack of understanding among policy-makers about risks of emerging technologies and the fragmentation of regulatory action. In this chapter we consider how to ensure that regulation is implemented and developed consistently and effectively in the digital world.
228.As we noted in the introduction, a range of regulators have a stake in the digital world. Each has taken steps to understand the implications of this and to adapt. Caroline Normand, Director of Policy of Which?, said that this had created a confusing picture:
“There are lots of initiatives, there are lots of regulators, there are underlaps and there are overlaps. We think that that needs to rapidly be sorted through, so that we have the appropriate level of regulation and the appropriate regulators as quickly as possible.”253
229.Gaps have appeared in regulation which do not clearly fall within any one regulator’s remit, or which would require a regulator’s remit to be expanded. Matt Reynolds, a journalist at Wired UK, told us: “Consistently, existing bodies have not stepped up or seen that their remit extends to the online world”.254
230.Policy makers have hesitated to address these gaps. When action does occur, there is a risk that it will be misdirected. Jamie Bartlett told us that “it will be very easy to pass very bad laws about how the internet works now, not thinking about how it might work in future.”255 He was concerned that such laws might be a reaction to public consternation about the internet, which itself was often driven by traditional news media organisations frustrated by the loss of advertising revenue to big tech companies, producing “remarkable headlines that are not particularly helpful”.256
231.Dr Paul Bernal called for policy-makers, including parliamentarians, to develop “a better knowledge and understanding of the technology, of the environment, of the regulation and law that exists, and of the problems surrounding that regulation and law.” He noted that there had been several recent examples of poor policy and practice, such as inappropriate prosecutions and ineffective legislation. He added: “Getting this right is critical before considering further regulation or legislation.”257
232.However, inaction causes problems of its own. As we saw in chapter 4, competition law is slow and retroactive, and does not take account of non-economic problems associated with digital dominance. Once the damage is done, it is often too late to remedy. Preventative action is needed.
233.Regulation across different sectors needs to be strengthened and better coordinated to be capable of responding to the evolving digital world. Dr Damian Tambini said that before now regulatory measures had been implemented in “a fragmented way across different areas. The solution to the current impasse is not going to be a tweak here or there, but a policy response that is coordinated across multiple policy areas.”258 For example, competition policy should be considered alongside other forms of regulation and policy. In his view this was necessary for developing policies in the face of powerful international companies who might otherwise play different policy-makers off against each other.
Overarching regulation
234.Elizabeth Denham, the Information Commissioner, suggested establishing a body which would scan the horizon for emerging trends to help co-ordinate regulators. The aim of such a body would be to ensure that regulation across different sectors is equipped with the understanding to respond to the digital world. Yih-Choung Teh, Group Director for Strategy and Research at Ofcom, told us that Ofcom worked closely with other regulators and there were “a number of mechanisms in place to ensure effective collaboration and co-ordination”.259 Nonetheless, there were “real attractions” to an overarching body as it could help with digital capabilities and understanding.
235.Margot James MP, the Minister for Digital and the Creative Industries, recognised the importance of horizon scanning. Her department already had a team of highly qualified officials “tasked with assessing and staying across emerging technologies”.260
236.Doteveryone proposed a new body, which it called the Office for Responsible Technology, whose responsibilities would be to empower regulators; to inform the public and policy-makers; and to support people to find redress.261
237.In this report we have recommended that the powers of the ICO, the CMA and Ofcom should be extended in various areas where there is a pressing need for regulation. However, the regulatory landscape and location of powers is in urgent need of review This might include consideration as to whether a new regulator for the internet is needed.
238.We recommend that a new body, which we call the Digital Authority, should be established to co-ordinate regulators in the digital world. We recommend that the Digital Authority should have the following functions:
- to continually assess regulation in the digital world and make recommendations on where additional powers are necessary to fill gaps;
- to establish an internal centre of expertise on digital trends which helps to scan the horizon for emerging risks and gaps in regulation;
- to help regulators to implement the law effectively and in the public interest, in line with the 10 principles set out in this report;
- to inform Parliament, the Government and public bodies of technological developments;
- to provide a pool of expert investigators to be consulted by regulators for specific investigations;
- to survey the public to identify how their attitudes to technology change over time, and to ensure that the concerns of the public are taken into account by regulators and policy-makers;
- to raise awareness of issues connected to the digital world among the public;
- to engage with the tech sector;
- to ensure that human rights and children’s rights are upheld in the digital world;
- to liaise with European and international bodies responsible for internet regulation.
239.Policy-makers across different sectors have not responded adequately to changes in the digital world. The Digital Authority should be empowered to instruct regulators to address specific problems or areas. In cases where this is not possible because problems are not within the remit of any regulator, the Digital Authority should advise the Government and Parliament that new or strengthened legal powers are needed.
240.The Digital Authority must be properly funded to be effective and to carry out research. We recognise that this would give the Digital Authority significant powers. This is necessary because of the magnitude of urgent social and political problems caused by regulatory fragmentation in the digital world. These problems are likely to become more complex as technology develops. The Government’s ‘Digital Charter’ work programme is a start, but a new body with the requisite resources and authority is needed to co-ordinate at the heart of the Government. The Digital Authority should therefore report to a Cabinet Office minister.
241.Given the European and international dimensions to these issues, it is important, after the UK leaves the EU, to have mechanisms in place which allow the UK to co-operate with European and international bodies with relevant responsibilities. For this reason it will be important not only for the UK Government to maintain links with European and international partners but for the Digital Authority to have responsibility for liaising with the appropriate European and international institutions.
242.The Digital Authority should be politically impartial and independent of the Government. Its board should consist of chief executives of relevant regulators with independent non-executives. It should be chaired by an independent non-executive. As the digital world develops, it will be important that democratic scrutiny is maintained of the regulators themselves. If regulation needs to adapt, this may require the transfer of greater powers, as we have suggested in the case of Ofcom. Laurie Laybourn-Langton, Senior Research Fellow, Institute for Public Policy Research, said that addressing regulatory challenges should be “undertaken according to democratic principles, in the same way that we have provided regulation in other key areas of society and the economy through a democratic mechanism—Parliament and the people who represent us”.262
243.The Digital Authority will co-ordinate regulators across different sectors and multiple Government department. We therefore recommend that it should report to the Cabinet Office and be overseen at the highest level.
244.We recommend that a joint committee of both Houses of Parliament should be established to consider matters related to the digital environment. In addition to advising the Government the Digital Authority should report to Parliament on a quarterly basis and regularly give evidence to the new joint committee to discuss the adequacy of powers and resources in regulating the digital world. The combined force of the Digital Authority and the joint committee will bring a new consistency and urgency to regulation.
261 Catherine Miller, Jacob Ohrvik-Stott & Rachel Coldicutt, ‘Regulating for Responsible Technology: Capacity, Evidence and Redress: a new system for a fairer future’ (October 2018): https://doteveryone.org.uk/wp-content/uploads/2018/10/Doteveryone-Regulating-for-Responsible-Tech-Report.pdf [accessed 15 January 2019]