A Biblical Story To Battle Big Tech
Online safety regulation is big on the agenda of the U.K. government. It has been years in the making, and it will soon be brought up to Parliament in the form of an eponymous Bill. Now let’s hope it does not get distorted beyond all measure of usefulness, as Bills sometimes do.
The intention of the policy itself, is inherently good. Given the horrific things that happen online, from terrorist activities to child sexual exploitation to harassment to cyber fraud, it is also badly needed.
The idea behind it is that companies have a ‘duty of care’ towards individuals to protect them from harm which may occur on their platforms. It’s an innovative approach, but the idea is not new at all. I hope my fellow policymakers won’t kill me for oversimplifying this. But the idea is as old as the Bible. Literally.
There’s a parable in the Gospel of Luke about the Good Samaritan. Legal students in Britain would remember this one; it’s the story Lord Atkin invoked when asked to deal with a difficult case in the House of Lords, as the U.K. Supreme Court was then known. Poor Mrs Donoghue found a decomposed snail in her ginger beer bottle, became ill and had to undergo emergency treatment. She was diagnosed as suffering from nervous shock and acute gastroenteritis. Atkin and others, try as they might, couldn’t find any remedy to award the Glasgowan as her claim to compensation was not recognised in 1932. There was no contract as she had not bought the bottle, her friend had. Mrs Donoghue had had no direct contact with the seller at the shop, much less the manufacturer of the actual bottle. It was just an unfortunate incident and the judges’ hands were tied.
It’s at times like these Shakespeare’s words about the law being an ass ring true. But dear old Atkin (and a couple other bewigged gentlemen at the bench) chafed at the idea of disregarding Mrs. Donoghue’s troubles. And Atkin turned to the Bible for inspiration.
In the Parable of the Good Samaritan, a lawyer asks Jesus, who is my neighbour? Jesus relates a story of a man lying on the side of a road, bloody and beaten and how many people walked by without bothering to help. But a passing Samaritan, stirred by compassion, helped care for him. It followed that the Samaritan and the wounded man were neighbours, and we should show mercy to our neighbours.
Lord Atkin’s genius lay in two things: firstly, in successfully challenging conventional notions of legal responsibility and accountability by putting the onus on the maker of goods to answer for their defects and the sufferings of the end user. Common sense today would dictate that wouldn’t it. But back then, it was new.
Secondly, in applying that parable brilliantly to the apparent stalemate. In one clean stroke Atkin laid out a new approach for liability centred around the idea of care we owe each other and the so-called famous neighbourhood principle: in other words, people must take reasonable care not to injure others who may foreseeably be affected by our actions and inactions.
The phrase ‘duty of care’, now ubiquitous in employment law, personal injury law, medical negligence etc is simply based on the care we ought to owe each other. But in 1932, it was a novel and exciting approach. It went on to become a foundational legal tenet in negligence for developed countries the world over. And it all originated from a simple biblical passage.
This is the idea behind online harms regulation. It’s so simple, it almost seamlessly blends into our world (again, with apologies to colleagues, the work is hardly seamless but the idea certainly is!). Duty of care is a wonderfully elastic concept, suitable for changing needs, rooted in humanity and reason, ready to give countless people relief. And it has now made its way to the digital world, soon to be applied en masse to regulation of technology and titans of industry.
It will give similar protections to online users that consumers of goods have, that employees at work places have, that those in medical care have. It will ask for accountability and compassion. It’s a sea change in thinking. It’s not a biblical miracle. But it’s a pretty good parable.
