The Global Network Initiative (GNI) appreciates the opportunity to provide feedback on Ofcom’s proposals for how internet services that enable the sharing of user-generated content (‘user-to-user services”) and search services should identify, assess, and mitigate illegal content under the Online Safety Act, 2023.
As a general matter, GNI agrees with Ofcom’s assessment that the characteristics of a particular service, as well as its governance, systems, and processes for identifying and addressing risks, contribute significantly to its likelihood of causing impacts on online harms. However, in our submission, we note a few concerns in the present regulatory approach by Ofcom, which does not sufficiently take into consideration the costs and burdens associated with developing and implementing systems required under the regulation for smaller, low-risk U2U and search services. At a systemic level, this could create significant barriers to entry for new services, those that serve academic or public-interest, and those used and relied upon by communities that are marginalized or associated with particular languages, religions, sexual orientations, or political affiliations. In addition, despite the critical role of risk assessments as a mechanism for identifying and mitigating risks, there is no indication in Ofcom’s guidance on whether and when such risk assessments will be made public, either by the services that conduct them or by Ofcom.
Separately, while we appreciate Ofcom’s recognition of encryption’s “important role in safeguarding privacy online” and the importance of pseudonymity and anonymity for free expression, we are nevertheless seriously concerned that the framing of these functionalities as broadly posing particular risks may create particular burdens for services that enable them and thereby disincentivize their adoption and deployment across U2U and search services. It is therefore important for Ofcom to further narrow and tailor obligations under the regulation to appropriate services, paying particular attention to the implications for encrypted services, public interest platforms, smaller/micro businesses, community-led moderation approaches, and internet infrastructure providers.
The GNI Principles on Freedom of Expression & Privacy, together with our more detailed Implementation Guidelines (together, “the GNI framework”), as well as the broader, complementary approaches outlined in the UN Guiding Principles on Business and Human Rights (“UNGPs”) and OECD Guidelines for Multinational Enterprises (“OECD Guidelines”), include robust guidance for how companies should conduct due diligence and assess risks associated with human rights. Where such assessments surface actual or potential human rights impacts, the GNI framework helps companies identify steps that they can take to prevent, mitigate, and remedy adverse impacts.