How do we understand online harms? The impact of conceptual divides on regulatory divergence between the Online Safety Act and Digital Services Act

Abstract

ABSTRACT The Online Safety Act and Digital Services Act constitute two approaches to the co-regulation of platforms based on an approach based in mitigating harm. In both instances, policy makers have framed these new legislative initiatives as world-leading. However, how ‘harm’ is understood is significantly different in both regimes, with both conceptual and practical effects. This article explores how distinct understandings of harm can serve as a basis for increased regulatory divergence between the UK and EU. While the UK considers harm in a narrow sense of the physical and psychological harms to individuals resulting from specific illegal activities, the EU considers it broadly, conceived as both harm to individuals and harms to society, with a consideration of harm as the result of systems rather than individual behaviours. This difference in understandings results in significantly different approaches to co-regulation, impacting upon the potential for cooperation, sharing of expertise, and cross-border activity.