text: The proposals focus on the types of services and tools being offered — those that facilitate user-generated content or user interaction are in scope — rather than the nature of organisations. However, there is clearly a significant difference between a website offering a comments section at the bottom of a page and a dedicated media sharing platform. Similarly, startups and SMEs will be concerned about the extent of the compliance burden and their ability to meet this burden without compromising on innovation. The consultation refers to a “risk-based and proportionate approach” to enforcement, although this is likely to be of limited comfort unless and until this approach is borne out in more substantive terms. The consultation is also looking at enforcement powers to ensure a level playing field between organisations that have legal presence in the UK and those that operate entirely overseas, clearly implying that the new law will have extra-territorial effect and will apply to non-UK organisations, perhaps on a similar basis to the GDPR (e.g., where they offer their services to UK users).
  The consultation notes the limitations of the existing regulatory framework in the online space, such as that derived from the EU’s “e-Commerce Directive” whereby many organisations are effectively shielded from liability unless they are actually aware or ought to be aware of relevant content (as opposed to having a pro-active duty to identify such content). How far the new duty of care will deviate from the approach remains to be seen, and it is hoped that the codes of practice will flush this out. Clearly, the more onerous the duty, the greater the compliance burden and risk of enforcement action.
  Culture Secretary Jeremy Wright has suggested that fines for organisations should be comparable to those under GDPR (up to the greater of 4% of annual global turnover or €20 million), while the consultation cites the Senior Managers & Certification Regime in financial services as a potential reference point for determining senior managers’ liability. Liability of this nature is likely to focus the minds of the board members of these organisations. In addition, the consultation is looking at new mechanisms for enabling designated bodies (e.g., potentially consumer protection organisations) to channel complaints on behalf of consumers.