James Pressley: Why the Wild West of the internet is about to change
James Pressley, Head of Corporate and Commercial at Kirwans law firm, explains why things are about to change for online platforms like Facebook, Snapchat, Instagram and Airbnb that have effectively been operating outside the law.
The first online platforms operated in a Wild West environment. The idea was that they were a marketplace only – they simply provided a space within which providers and consumers could meet online to exchange products and information.
This was encouraged by an American law, s.230 Communications Decency Act 1996, which states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. Effectively this meant that an online platform was not responsible for material posted on it by its users. This view was later endorsed in legislation and case law in the UK and Europe.
Facebook and AOL have regularly used the s.230 Communications Decency Act to defend themselves. The online social media platforms and marketplaces flourished, effectively almost outside the law. The internet was free but, like any unregulated space, could also be dangerous.Recently, the tragic case of Molly Russell highlighted the dangers of social media platforms.
Molly took her own life after viewing graphic images and content relating to self-harm and suicide on Instagram. Once she had accessed this content, Instagram’s algorithms operated to push more of it into her feed.
Following Molly’s death, public concern over social media has reached a crescendo, with the Children’s Commissioner Anne Longfield calling for social media platforms to have a ‘duty of care’. Suicide Prevention Minister Jackie Doyle-Price has also said that “nothing is off the table”.
Recital 48 to the E-Commerce Directive 2000 stated that it did not prevent member states (such as the UK) from applying duties of care which could reasonably be expected from the social media platforms in order to detect and prevent illegal activities. Although no such duties were implemented into UK law at the time, they clearly could be. If we accept that a duty of care is a duty to take reasonable care not to injure a third party, it is clear that if a third party is injured and you have failed in your duty, that third party will be able to claim against you for damages.
The UK government has recently said that it will not legislate to change the legal status of social media platforms (for example, by making them subject to a duty of care), but instead will expect them to comply with a ‘code of conduct’ governing the content on their sites. The Online Harms White Paper is expected shortly.
This may be scant consolation to Molly Russell’s parents, but the government is obviously trying to walk a fine line between taking ineffective action and opening the duty of care legal floodgates which could destroy social media in the UK.
Turning to business, online marketplaces such as Airbnb also have their problems, with websites such as airbnbhell.com showing that not everyone has a dream holiday and recourse can be very limited. What if a duty of care was also imposed on online marketplaces like Airbnb? You would probably find that all Airbnb rentals suddenly had safety features like fire escapes and fire extinguishers. This would put Airbnb on a level playing field with hotels and standard bed and breakfast operators and would probably destroy Airbnb’s competitive advantage.
In November 2018 the Council of the EU agreed a draft Regulation for a more “transparent, fair and predictable online platform environment”. Part of this included protections for businesses, such as a vendor of goods via Ebay or Amazon Marketplace. Such vendors are to be provided with clear and easily accessible terms and conditions and a statement of reasons if their account is terminated. They are also to be provided with the parameters of how they are ranked on platforms.
That leaves a yawning chasm which the EU must be desperate to fill, namely the question of when are consumers going to get improved protection for the things they buy from online marketplaces?
Under the Unfair Commercial Practices Directive 2005 and the Consumer Rights Directive 2011, both now part of UK law, the only recourse a consumer who buys from another consumer has on sites like Ebay and Airbnb is via a faceless arbitrator who can only be communicated with by email. A consumer who buys from a trader on a marketplace site technically has full legal court rights against that trader, but this is not well known and many never get beyond the faceless arbitrator.
This explains the bizarre difference between buying from Amazon, or a seller on Amazon Marketplace, both accessed through the same site. If I buy a faulty computer from Amazon itself, I can take direct court action against Amazon. But, if I buy the same faulty computer from a third-party trader on Amazon, who may be shown on the same web page, my only legal recourse is against that third-party trader, which may be difficult to identify, locate or contact.
Of course, if the protection of their ‘marketplace’ legal status was removed from Ebay, Airbnb and Amazon, they would be deluged with claims from disgruntled consumers. The EU may not go that far, but it is not difficult to foresee future laws requiring clarity for consumers as to what kind of legal recourse they have, and who it might be against.
In May 2018, the UK government response to the Internet Safety Strategy Green Paper consultation stated that “online platforms need to take responsibility for the content they host ... this includes examining what the liability regime should look like in the long run”.
Civil servants across America and Europe are on the march. What used to be the Wild West will soon feature orderly lawns and white picket fences. And the independence of the online platforms will be gone. Not with a bang, but with a whimper.