Introducing a duty of care for social media

Written by Maeve Walsh, Carnegie UK Trust Associate

There is no doubt that some form of regulation will form part of the Government’s proposals. But the challenge for policymakers and legislators in this fast-moving area is clear: as more and more examples of threats and harms to individuals from social media use emerge, we are still a long way from amassing the type of robust, authoritative evidence of causation traditionally required as a basis for regulatory action.

But we can’t ignore some of the correlations. For example, the explosion of social media use amongst young people has corresponded with evidence over a similar period of an increase in self-harm and suicidal behaviour:

‘The precautionary principle should be applied when, on the basis of the best scientific advice available in the time-frame for decision-making: there is good reason to believe that harmful effects may occur to human, animal or plant health, or to the environment; and the level of scientific uncertainty about the consequences or likelihoods is such that risk cannot be assessed with sufficient confidence to inform decision-making.’

The ILGRA document advises regulators on how to act when early evidence of harm to the public is apparent, but before unequivocal scientific advice has had time to emerge, with a particular focus on novel harms. The ILGRA’s work is still current and hosted by the Health and Safety Executive (HSE), underpinning risk-based regulation in new and innovative areas. The HSE is also the upholder of a much more established regulatory approach: the duty of care principle — set out in the Health and Safety at Work Act 1974 — which holds owners of public spaces in the physical realm responsible for the health and safety of those who use those spaces — whether employees, customers, visitors, etc.

If you apply the same approach to social media platforms — that they are forms of public spaces — then the people who go to such platforms should be protected from reasonably foreseeable harm as they would expect in any public place, such as an office, bar or theme park. A person (including companies) under a duty of care must take care in relation to a particular activity as it affects particular people or things. If that person does not take care and someone comes to harm as a result then there are legal consequences, primarily through a regulatory scheme but also with the option of personal legal redress.

Applying this approach to social media would work as follows: new legislation would set out the duty of care and identify the key harms Parliament wants the regulator to focus on; for example, the ‘stirring up of hatred’ offences, national security, harms to children, emotional harm, harms to the judicial and electoral processes and economic harms. A regulator (the proposal suggests Ofcom is best placed to take this on) would set out a harm reduction cycle involving civil society as well as companies at each consultative step. Companies would be required to measure and survey harm, produce plans to address these harms for public consultation and agreement with the regulator, then implement the plans. If the cycle does not reduce harms or the companies do not co-operate then sanctions could be deployed.

Simple, broadly-based and largely future-proof — applying the “duty of care” to social media would therefore enable the prevention of harm to be expressed in terms of outcome, not specifics of process and enable a preventative approach to reduce adverse impacts on users, rather than a reactive one that requires a high bar for evidence to justify a focus on compensation and redress.

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