Trans-Atlantic Perspectives: How the U.S. and UK Are Tackling Online Content Regulation
October 5, 2023
Privacy Plus+
Privacy, Technology and Perspective
Trans-Atlantic Perspectives: How the U.S. and UK Are Tackling Online Content Regulation. This week, let’s contrast the state of online content regulation, both in Britain and here in the United States.
Background:
It was never supposed to be easy to balance public protection (especially the protection of children) and robust free speech, both of which are priorities of Britain and the United States. Nobody in their right mind thinks children should be exposed to pornography or online content that encourages them to commit suicide, that disinformation is a community good, or that we should live our lives surrounded by the nauseating soundtrack of hate speech. But reasonable minds can and do differ on how to achieve the protections we want, without chilling the challenging messages that make us think, the calls that repeated over time make us wonder, or the provocative words and sights that finally cause us to change our minds – all while arguing over what kind of “privacy” we want, and how much of it.
Let’s contrast two things that are happening now, on either side of the Atlantic.
The UK’s New Online Safety Bill:
The U.K. Parliament recently passed the Online Safety Bill, an offshoot of the European Union’s Digital Services Act, which you can read more about by clicking on this link to our blog:
https://www.hoschmorris.com/privacy-plus-news/digital-services-act
The new Online Safety Bill goes even further in requiring companies actively to assess the harms that can be caused on or through their online services, to police those services, and to do something about harmful content – not just react to complaints. Also included within the Bill’s 300 pages are age-verification requirements and options for parents or others to reduce the amount of “illegal content” they see. Penalties are stiff – many millions of pounds or up to 10% of global revenue, whichever is greater.
You can read more about the Online Safety Bill by clicking on the following link:
https://www.nytimes.com/2023/09/19/technology/britain-online-safety-law.html?searchResultPosition=1
You can read the Online Safety Bill directly by clicking here:
https://bills.parliament.uk/publications/52368/documents/3841
The U.S. is Still Arguing Over the First Amendment:
In the United States, the “lion in the path” of content regulation will always be the First Amendment. A jurisprudence that allows flag-burning, neo-Nazi marches in Jewish neighborhoods, and passionate rejection of science can only grant exceptions to the rule of unbridled speech (“clear and present danger,” “fire in a crowded theater,” etc.) grudgingly and as narrowly as possible, if ever at all.
Ever since the Fairness Doctrine was repealed by the Federal Communications Commission in the 1980’s, it has been increasingly profitable for conventional media and now social media companies to market themselves to people with particular viewpoints or politics, or alternatively target particular content to particular users based on their viewpoints or politics.
Recently, some have complained that social media companies have “censored” their (usually conservative) views. At least Texas and Florida have outlawed such supposed “censorship,” and the validity of their statutes has been examined before the Fifth and Eleventh Circuits. For more on that subject, you can read these previous posts on our blog:
· Fifth Circuit Lets Texas Ban Content Moderation on Social Media Platforms (For Now): https://www.hoschmorris.com/privacy-plus-news/texas-social-media-law
· Wake up Florida – New State Laws Imperil Freedom and Privacy: https://www.hoschmorris.com/privacy-plus-news/wake-up-florida
At about the same time, another court has enjoined the U.S. Government from encouraging social media companies to publish truth and not disinformation. For more on that development, you can click on the following link:
Now the Supreme Court has announced it will hear those challenges, in the Netchoice decisions arising out of those states (respectively, Netchoice v. Paxton and Moody v. Netchoice). At issue will be who can control what’s published online, and under what circumstances and conditions: The owners? No one? What about conventional media: Can The New York Times continue to exercise any editorial control at all?
Our Thoughts:
We see a giant irony here, with a side dish of “be careful what you wish for.” Elon Musk, the new owner of “X f/k/a Twitter,” is known to be increasingly and stridently right-wing in his politics. Of course, these upcoming decisions in Netchoice will apply to X and other platforms/media companies like X, will they not?
Additionally, we think that in the current era where AI can (and does) generate voluminous amounts of content, it’s essential for humans to be discerning about the information with which they engage. Without editorial control, the risk is that AI (or bad actors exploiting AI) overwhelms us with disinformation and incendiary content, and further fractures our society.
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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.