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LONDON Britain's super-regulator is about to inherit ministers' biggest tech headache.
In its attempt to tackle the long-lamented "wild west" of the internet, the U.K. government is putting its faith in Ofcom the existing telecoms and broadcast regulator which is rapidly expanding its remit, and size, to take on the job of Britain's newest tech sheriff.
Ofcom will be given new powers to shape tech companies' safety policies, and to investigate and issue large fines to search engines and social media platforms they judge have not done enough to protect their users from harm under proposals in the draft Online Safety Bill, which is due to be debated by MPs before Christmas.
The regulator has been on a recruiting spree in recent months as it gears up for its new role, and it will need an extra 300 people beyond its 1,000-strong workforce, Chief Executive Melanie Dawes told MPs last month. The staff it needs to fulfill its new remit will make it "by far the biggest beast" in online regulation, said Andrew Murray, a law professor specializing in technology at the London School of Economics.
Supporters of the proposals say an independent Ofcom will play a vital role in protecting internet users from harm which, until now, has been largely left to tech executives based in Silicon Valley. But some observers question whether politicians should be leaving an unelected regulator to work out the fine print of a groundbreaking law which will attempt to balance free speech with safeguarding users.
It is a situation they say will leave Ofcom in the eye of an inevitable political storm in the years ahead.
Ofcom is no stranger to controversy, and as the U.K.'s broadcast regulator it has long pondered issues of free speech. The watchdog occasionally creeps into the public consciousness as an adjudicator when there's a big television bust-up.
Earlier this year the regulator received a record 58,000 complaints after the controversial television host Piers Morgan went on the offensive against royal Meghan Markle. Ofcom ultimately ruled thatrestricting Morgan's views would be a "chilling restriction" on free expression.
But, unlike its broadcast role, the regulator will not look at direct complaints about whether individual pieces of content should or should not remain online. Instead, it will be more broadly tasked with deciding whether social media platforms have the right systems in place to protect their users.
One figure who worked on the bill earlier this year said that while independent regulation, and taking the U.K. government itself out of the equation, is the right thing to do, there is a risk ministers will turn their fire on the regulator during inevitable online controversies in the years ahead.
"When you have a whole load of horrific cases you will have a government minister standing at the despatch box saying: 'well these companies told Ofcom they were compliant.' Either the government will be forced to attack the regulator, or they will be forced to attack social media companies. If they attack the social media companies they are admitting that our own legislation doesn't work," they said.
But while they admitted the situation was imperfect, they challenged critics to come up with a better solution.
"Obviously independent regulation is the right thing to do because you don't want government regulating free speech," they added.
Under the draft bill, Ofcom will agree codes of practice with the tech companies governing how they tackle online harm. But Murray, of the London School of Economics, warns the legislation as currently drafted leaves Ofcom to fill in the gaps and do a lot of policy-setting.
They are going to set codes of practice and standards and values which then the platform will have to enforce through technology and human moderation, or a mixture of both probably, he said.Are Ofcom going to be sufficiently accountable for what is going to have a huge impact on peoples lives?"
"There is a real concern this is being done by the regulator and not by parliament. Parliament is saying you have got to do this, we are giving you the framework and the powers, now go away and do it. This is alarming, he said, arguing that such a move weakens the link between voters and big decisions.
With the exception of judicial review, or another form of direct enforcement through the courts, there is very little either the regulated industries or individuals can do in terms of accountability. You cant vote for your Ofcom chief executive every five years, or your Ofcom chairman, Murray warned.
Tech firms themselves have also warned that the proposals could leave them flat-footed. In its submission to MPs looking at the law, Google said a "lack of legal clarity" risks uncertainty that could detract from "quick and effective action to protect users."
"Some definitions are unclear and, with substantial details being left to Ofcom, a real operational burden will be placed on the regulator to implement this Bill in full, which could further delay a compliance regime being put in place," Google warns.
Opposition Labour MP Darren Jones, who sits on one of the parliamentary committees scrutinizing the Online Safety Bill, acknowledged the tricky balance to be struck in letting the regulators do their job and ensuring a democratic link.
He asked: "Parliament is unable to deal with defining issues that change quickly but who will hold the regulators to account for their decisions in a routine and timely way?"
Jones pointed to another controversial clause in the draft law which gives senior ministers the power to direct the regulator and said this is "not the answer either."
"We will need to consider what new checks and balances will be required," he said.
An Ofcom spokesperson insisted that only parliament can decide the scope and nature of the online safety laws, but said it was right the nominated regulator should be among those offering technical expertise and advice.
"Ofcom is independent from government, but we are fully accountable, both to parliament and the courts, he added.
A spokesperson for the Department for Digital, Culture, Media and Sport (DCMS) said: "The Bill defines the harmful content companies will need to tackle and caters for harms that dont exist now but may do in future. It provides a clear framework for Ofcom to operate in, with checks and balances to ensure ministers and parliament are given appropriate oversight."
Putting the right people in place at Ofcom will also be crucial, those on all sides of the debate agree.
Sachin Jogia, who worked on developing Amazon's voice-activated technology Alexa, was recently appointed as the regulator's chief technology officer. But the recruitment of online safety policy principals in Tony Stower, a former lobbyist for children's charities the NSPCC and the 5Rights group, and former NewsGuard managing director Anna-Sophie Harling, have raised "red flags" among some in industry because of their previous advocacy against Big Tech, according to one lobbyist.
"Harms campaigners would rightly be upset if the team was staffed by former tech lobbyists. This is the equivalent," they said.
The Ofcom spokesperson quoted above pointed out that the organization has hired new colleagues from "Google to the NSPCC."
Murray, meanwhile, believes Ofcom has a really good executive team and some good specialists," including economists and technical experts.
Ofcom chief Dawes, a former Whitehall permanent secretary, is "not afraid of a fight," according to one former colleague, and will not shy away from "knotty, difficult decisions and arguments."
She is "personable" but "nobody's fool," the colleague added, pointing out the skills in "politics with a small p" she would have needed to get to the top of the U.K. civil service.
But Murray warned it would still be a challenge for the regulator to recruit people who understand so-called smart moderation technology which often uses artificial intelligence to automatically moderate posts.
They are never going to pay the same salaries as the likes of the platforms pay," he warned. "There are not enough good people who know this technology inside out, and those that do are highly in demand. It is a problem for any regulator in this sphere."
Ofcom is acquiring new skills and talent, both through training and by hiring specialists in areas like data and online technology, the Ofcom spokesperson said, adding it has also opened a new technology hub in Manchester to help attract skills and expertise from across the UK.
"We continue to work closely with Ofcom to make sure it has the resources to carry out its role as it recruits people with the necessary skills and policy expertise," the DCMS spokesperson said.
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