Linklaters disputes partner Ben Packer discusses the regulation of online harms and why it’s set to be a growth area, ahead of next week’s virtual student event
“The internet has gone from a place where, only 20 years ago, it was considered beyond the remit of law makers.”
The birth of the internet in 1983 and launch of the World Wide Web a decade later revolutionised our lives and the legal systems that ground such. Today, this area of law falls broadly under what we would now call internet law. Online harms is a branch of internet law and refers simply to the harm (legal or illegal) that results from online activity.
Many will be familiar with everyday examples of online harm — from the racist abuse several footballers faced in the aftermath of England’s penalty defeat in the European Championships, to the era of ‘fake news’ and disinformation that rose to prominence during the Trump administration.
Training at Linklaters, Ben Packer, now a partner at the firm, established his practice in financial services, tech and sports disputes, before adding online harms to his areas of interest. Packer first came across this area of law when working in a team advising a big tech company as part of The Independent Inquiry into Child Sexual Abuse (IICSA). Reading the Online Harms White Paper, he noted the parallels with what he was already doing on the regulatory and investigatory side of financial services and saw it as an opportunity to expand his practice.
Following such, it became apparent that many lawyers in the firm were already doing work in online harms and adjacent areas of law and it was a “case of bringing it all under one roof”. As a result, a group of lawyers, all fascinated in the developments surrounding online harms, began to emerge at the firm.
Now a wholly global group, the team encompasses members from the firm’s dispute resolution (DR) and telecommunications, media and technology (TMT) practice groups and includes lawyers with a variety of backgrounds across data privacy, GDPR, technology contracting, criminal law and regulatory work. The crux of what they do involves advising clients on the global regimes that regulate illegal and harmful online content. These regimes typically catch social media platforms, but can also apply to many other online businesses including private messaging platforms and gaming services.
The global regulatory regimes which govern online harms are evolving rapidly too. Indeed, whilst online platforms previously benefited from somewhat broad immunity from responsibility for content posted by their users, there is now a global consensus in favour of greater regulation. The UK’s draft Online Safety Bill is perhaps the most sweeping of all new regulation, and, in the words of the government, aims to make the UK the saftest place to be online in the world. In a nutshell, the draft Bill means that online platforms will now need to take certain steps to assess the risk that their platform will be used to disseminate illegal and/or harmful material. Once that assessment has been carried out, platforms then need to show that they have taken proportionate steps to mitigate that risk.
This will all be overseen by Ofcom, which will be tasked with determining what is deemed to be ‘proportionate’ in this context and taking enforcement action against those it believes have fallen short. Indeed, as Packer tells me, we can expect a raft of statutory instruments and guidance in the months and years to come as the government and Ofcom seek to put “flesh on the bones” of these draft proposals.
Currently then, the biggest challenge his clients are facing involves how to comply with these regimes given the sheer volume of content uploaded onto platforms each second. He explains: “If you look at the EU’s Digital Services Act (DSA) for example, the language almost implies that an individual human will be making finely-balanced judgements on each piece of content: is the content legal or not? Is it compatible with the platform’s terms and conditions? And, once that assessment’s been made, the DSA will require a platform to give a clear and specific explanation of this assessment to the user. Doing this for the volume of content uploading each second to these platforms is immensely challenging.”
The biggest challenge then is how to translate what can appear as simple legislative requirements into systems and processes capable of reviewing and making decisions about content on a vast scale and at high speed. Looking to the future, Packer predicts that the team’s role will be twofold, helping clients design and implement frameworks to enable them to comply with the regimes and then assisting clients on any investigations or litigation arising from alleged non-compliance.
Coming into his career amid the global financial crisis, Packer tells me how, at the time, it was clear financial services would be a key growth sector. Today, online harms appears to be in a similar position. “It’s one of those areas where we may look back in the future and be amazed there was not regulation earlier,” he emphasises to me.
For those looking to position themselves within this type of work, he’d advise looking at what each individual firm is doing and applying to those with both a tech client base and an interest in online harms. He continues: “It’s fair to say that, with many of the most ambitious regimes yet to come into force, we’ve moved early in setting up our online harms team now so it’s likely more firms will be talking about this area in the coming years.” He’d also advise looking at some of the core literature and getting to grips with the main policy debates at play, including how regulation interacts with interests such as freedom of speech, competition and data privacy.
When asked why aspiring lawyers should consider this area of law, Packer says:
“It’s an area of law that is fascinating for so many reasons. The aim of reducing harmful content online is a noble one but trying to balance that desire with the need to protect freedom of expression and individuals’ privacy is hugely challenging. What’s more, the law is developing at pace, with different jurisdictions taking very different approaches. With so many moving parts, I think online harms will be an exciting area to operate in for a long time into the future.”
Ben Packer will be speaking alongside other lawyers in the Linklaters online harms team at ‘Regulation, freedom of speech and the internet — with Linklaters’, a virtual student event taking place on Wednesday 22 September. You can apply to attend the event, which is free, now.