How to sum up 1700 pages in four words – Hi, I’m Heather Burns

By admin
As we both went through the process of trying to wrap our heads around the

1700
CARDINAL

-page

Ofcom
ORG

consultation on

the Online Safety Act
ORG

, which we both must do for our respective clients, geek tech lawyer par excellence

Neil Brown
PERSON

did exactly what I did, which was procrastinate the task by blogging about it. He wrote:

How can anyone possibly think that the long tail of companies which are going to be impacted adversely by

the Online Safety Act
LAW

are going to manage to get on this? Frankly, I’m wondering how I could manage to do so, and I’ve been a lawyer working in this area for, well, quite a long time now. Reading this alone is a task of

many days
DATE

. Understanding it will take even longer. Working out what, if any, response needs to go to

Ofcom
ORG

? Longer still. Part of me can only surmise that this is a shot across the bows by

Ofcom
ORG

, using this as an opportunity to showcase just what a mess a handful of lobbyists and politicians have created. To show unworkable it is going to be in practice. But that doesn’t make me feel any better that I cannot come up with a way to review this, let alone one which makes any sort of commercial sense. If understanding the Act, and its obligations, and the requirements of

Ofcom
ORG

, is the preserve of massive law firms, who can throw loads of people at the task (

££££
MONEY

?!), small companies have no chance.

Neil Brown
PERSON

of

Decoded Legal
ORG

, who is an Actual Lawyer.

There’s no doubt that

Neil
PERSON

is right about the message

Ofcom
ORG

is sending. As anyone who has ever provided services for a difficult client knows, sometimes all you can do is give the client exactly what they asked for. And to be clear, every word in those

1700
CARDINAL

pages is just that, cited and footnoted. Your move,

UK
GPE

Gov.

But as I worked through the why and hows of this particular task, another possibility occurred to me about another message that

Ofcom
ORG

might be sending. It’s one that I heard before – that, in fact, a lot of people heard before – the last time we went through this.

And by this, I meant getting to grips with a regulation which was devised to “rein in the tech giants” – and very specific ones at that – but was drafted in a way that swept in virtually anyone with an online presence of any size in its wake.

That botched regulation resulted in massive public anger, crowdfunded advocacy campaigns, awkward government backtracking, and eventual concessions and climbdowns: an admission that the policymakers in question had indeed got the whole thing very, very wrong. The drama distracted those policymakers from their objective of “taming the tech giants” they legislated for in the

first
ORDINAL

place, but even worse for them, it poured fuel on an existing fire of anti-government sentiment which was the absolute last thing they needed.

Remember that one? Yep.

It was

VATMOSS
ORG

.

For those who missed that joy – and

Sweet Baby Cheeses
PERSON

, I will not be rehashing the whole story here – this was the drama that happened in

2014-2015
DATE

, when the

EU
ORG

enacted a reform of how VAT taxes were accounted for in online digital purchases. The regulation was built entirely to target

Apple
ORG

and

Amazon
ORG

, and the way they routed all their e-commerce structures through

Ireland
GPE

or

Luxembourg
GPE

, in ways that saved them

billions
CARDINAL

in taxes by depriving

dozens
CARDINAL

of

European
NORP

countries of

billions
CARDINAL

in tax revenue.

But, as I said, the problem was that the way the regulation was drafted, it swept in anyone doing any ecommerce of any kind in

Europe
LOC

. Not “big tech”. Not “tech giants”. Anyone. Small businesses, sole traders, even hobbyists selling the odd creative digital download on the side for fun. Everyone fell into this system. And as it was drafted, everyone was expected to comply as if they were

Apple
ORG

and

Amazon
ORG

.

If you want a recap of how it all went down, and how a scrappy band of unpaid small traders had to become

Brussels
GPE

lobbyists out of their own pockets in order to get the eventual concessions put in, here’s a talk I gave way back in

2016
DATE

. (I need to state for the record that this was the

second
ORDINAL

worst trip I ever had in my life, to the worst project I ever encountered in my life. The actual worst trip I ever had in my life was also with them

several years later
DATE

. Because of that, I’m reluctant to share the talk; and I’ll be clear that it is not an endorsement of that project.) There’s also a resource page here.

The cover image on this post is one of the advocacy campaign’s slides.

Now, the tl;dr on their initial achievement is that the

EC
ORG

was legitimately astonished to learn about this entire other world beyond “big tech” and the “tech giants”. They genuinely had no clue: not about small businesses, not about sole traders, not about hobbyists, and worst of all,

not about one particular community that got swept into the scope of the regulation.

That’s the

one
CARDINAL

community you do not want to cross, ever, at the price of your own life.

Because if you think you’ve dealt with cutthroat political enemies, or intra-party backstabbing, or online troll mobs, I regret to inform you that you don’t even have a clue about the agony that awaits you if you piss off the online knitting community. That will be your final mistake. They will come for you. They will find you. They take no prisoners. They show no mercy. They will leave your head impaled on a giant knitting needle. They will knit tapestries depicting their final victory in battle, with your broken body depicted on a field of flowers.

Ladies and gentlemen, the

EC
ORG

pissed off the knitters.

And a lot of other people too.

And while they were admitting that they didn’t have a clue about independent e-commerce, they did admit

one
CARDINAL

thing:

they just assumed that anyone trading online went through a platform.

They really did. They assumed that everyone used a

third
ORDINAL

party provider, and a “tech giant” to boot. Which is why they assumed compliance would be simple, and free at that. They assumed someone else would take care of it.

So before the independent action campaign could advocate for their own businesses, which they put aside to run the campaign, they had to explain some absolutely astonishing basics about how the internet works to people who made digital policy for a living.

And let’s be clear: it took

months
DATE

for the

EC
ORG

to even consider that they’d made a mistake. Before they did that, they threw in a lot of attacks against the campaigners, the advocates, and anyone who had a problem with a law meant to “rein in the tech giants” but slapped them in the face instead.

Campaigners were initially told by the

EC
ORG

“now now, dear, this is all quite simple and you just haven’t read it closely enough.” Advocates were accused of making trouble for its own sake. Advocates from the

UK
GPE

, as most of them were, were accused of stirring up

anti-EU
NORP

sentiment ahead of the referendum. Impacted businesses were accused of making overdramatic gestures.

And there was

one
CARDINAL

other criticism thrown in, which finally brings us back to

Neil
PERSON

’s post about the

1700
CARDINAL

pages of reading that we are both procrastinating on by blogging.

A lot of policymakers and professional accountants – in other words, people who had been heavily involved with the crafting of the

VATMOSS
ORG

regulation

years
DATE

before any real-life trader had ever heard of it – responded to the controversy by hissing a particular criticism at the protesters and advocates:

You’re a professional and it was your responsibility to know about this.

In other words, all of those small enterprises and hobbyists were somehow supposed to have been keeping abreast of an

EU
ORG

tax law that was conceived, built, and promoted as being for

Apple
ORG

and

Amazon
ORG

. Just like accountants did!

Well that’s just silly.

So what was that line of criticism really about, then?

It was about gatekeeping.

It was about implying that people who didn’t monitor a law promoted entirely around

Big Tech
ORG

, and who thereby failed to resource the compliance work for it, were somehow being unprofessional.

It was about implying that those were the new rules of the road and anyone who didn’t monitor them was behaving irresponsibly.

And so it was about implying that people who were not capable of bringing small enterprises into compliance structures built entirely around

Big Tech
ORG

perhaps shouldn’t be trading at all.

In fact, I vividly recall

one
CARDINAL

prominent

Twitter
ORG

lawyer saying that small enterprises should have been welcoming the

VATMOSS
ORG

compliance burden, as the formative experience meant to toughen them up into major players. Which is an interesting spin on the fact that the overwhelming majority of businesses in scope had no desire to be major players. They were happy as they were.

And for that, they were told you’re a professional and it was your responsibility to know about this.

That, I think, is part of what’s happening with

Ofcom
ORG

’s

1700
CARDINAL

page consultation on

the Online Safety Act
ORG

.

(And FWIW, I suspect that’s the result of government pressure on them, not something they came up with on their own.)

Like

VATMOSS
ORG

, this is a law drafted to target “Big Tech” but which sweeps up everyone else in its scope. Because it’s been drafted to target

Big Tech
ORG

, it presumes

Big Tech
ORG

-sized legal and compliance teams. It assumes armies of these people.

And so the policymakers’ implication here is: if you don’t have a

Big Tech
ORG

sized legal and compliance team to eat into these

1700
CARDINAL

pages, or if all you’ve got is a

Neil
PERSON

or a me, well, then, perhaps you’re not professional enough to be online at all, hmmm?

For this is the

UK
GPE

, the most world-leading of world-leading nations, creating a world-leading internet of world-leadingness. So the implication here is: these

1700
CARDINAL

pages are the rules of OUR road and if you don’t like that, get off it and go drive somewhere else.

Releasing a

1700
CARDINAL

page consultation – the

first
ORDINAL

of multiple tranches of this – is, in itself, a form of gatekeeping.

It sends a message which small enterprises can understand, loud and clear, without reading a single word of it. That message is: you don’t belong here.

The problem is that a lot of businesses are going to get the message and pull out.

And that’s not conjecture. That, thanks to

VATMOSS
ORG

, is a fact we learned the

first
ORDINAL

time around.