Truss calls time for TikTok?
During the BBC’s ‘Our Next Prime Minister’ leadership debate on Monday 25 July 2022 between Rishi Sunak and Liz Truss, in response to Faisal Islam’s question as to whether she would crack down on TikTok, which was described as “a Chinese owned company, it’s a big social media company that has connections into millions of teenagers”, Truss stated “We absolutely should be cracking down on these types of companies” (see 00:32:04).
The National Security and Investment Act 2021, which came into force at the beginning of this year, together with The National Security and Investment Act 2021 (Notifiable Acquisition) (Specification of Qualifying Entities) Regulations 2021, grant the government powers to scrutinise and intervene in business transactions following a trigger event, such as a proposed takeover or asset purchase, in connection with entities which carry on activities in or offer goods to persons in the UK to protect national security, and requires the government to be informed of certain ‘notifiable acquisitions’ of qualifying entities in any of 17 areas of the economy deemed to be sensitive. These sensitive areas include companies that develop software that uses AI for purposes including identification or tracking and public electronic communications services (PECS) with a UK turnover of at least £50 million, albeit not social media or messenger and video conferencing services. The government then has the power to issue an order requiring a specified person to take or not take certain action, such as not selling the asset or entity to a particular third party, or to appoint a person to supervise the conduct of activities, and this can extend to conduct outside the UK where a company is carrying on business in the UK.
The Act has been used in recent days to block the licensing of IP owned by the University of Manchester pertaining to autonomous robots to Beijing Infinite Vision Technology Company.
For the purposes of the law of defamation, absolute privilege attaches to notices, directions, decisions, reports and orders under the Act.
Since the ownership of ByteDance is not at stake, however, there is no imminent trigger event which would empower the government to take action under the Act in relation to its activities. So how might the Foreign Secretary seek to crack down on ByteDance?
Other than seeking to introduce new legislation to expand the scope of the Act, the most obvious routes for the potential Prime Minister to seek to impose additional obligations and new controls on social media platforms, would be through the legislation currently undergoing Parliamentary scrutiny, either the Online Safety Bill which is currently on hold until after the summer recess or the Data Protection and Digital Information Bill.
The Online Safety Bill already includes provisions which permit the intended regulator, Ofcom, to apply to the courts to block regulated services, which would include TikTok, in the UK.
Against the backdrop of the publication by Ofcom of research, which found that the top three news sources for 12-15 year olds are Instagram, TikTok and YouTube, an attempt could be used to introduce a licensing regime under the Bill for social media platforms similar to that which applies to broadcasters operating in the UK and in particular the introduction of a ‘fit and proper’ test. This is already under consideration in relation to video on demand (VOD) services, and would supplement Ofcom’s Guidance for video-sharing platform providers on measures to protect users from harmful material.
Contrary to the current direction of travel, which is to liberalise international data flows, additional or alternative measures could be introduced in the Data Protection and Digital Information Bill to require localised storage of personal data or to maintain the current prior consultation obligations with the statutory regulator, currently the Information Commissioner but proposed to convert to the Information Commission, in relation to specified processing activities. The Secretary of State could also identify processing activities undertaken by social media and UGC platforms as part of the Statement of Strategic Priorities which may be designated and published (see clause 28, Data Protection and Digital Information Bill) and to which the Information Commission would be required to have regard when carrying out its functions.
Sites and platforms likely to be used by children, including social media platforms, video and music streaming sites and gaming platforms, have already been identified by the information Commissioner in his ICO25 draft strategic plan for the period 2022-25 as a priority.
While the Conservative Party leadership candidates’ respective positions in relation to technology and digital regulation have barely been explored in the hustings to date, it would appear that, unlike the eliminated candidate Kemi Badenoch who promised to rip up the Online Safety Bill, Liz Truss, who has the support of current Secretary of State for Digital, Culture, Media and Sport Nadine Dorries, might double down and seek to expand its scope.
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