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Published 30 August 2022
July was expected to be the month where long-awaited developments for the UK’s Online Safety Bill (“OSB”) were due to take place. However, any material developments came to a grinding halt following Boris Johnson’s resignation as Prime Minister. The OSB has now been delayed again. In July, Ofcom published its “roadmap to regulation” which provided the first indications of its regulatory approach. Following Ofcom’s guidance, the draft OSB was then due to reach the final stages of its path through the House of Commons (Report Stage and Third Reading) before summer recess on 21 July. We now know that this has been pushed to Autumn to be dealt with by the newly appointed Prime Minister.
The proposed legal framework seeks to introduce a ‘comprehensive package’ to protect the safety of its online users aiming to combat both illegal and “lawful but harmful” practices online, whilst also “ushering a new era of accountability and protections for democratic debate”. The robust new measures include granting Ofcom the power to impose significant fines of up to £18m or 10% of global turnover, whichever is the higher, should companies fail to comply with the new rules. Further, the regulator has the power to impose criminal sanctions on the company directors for certain breaches.
The OSB covers a wide range of content which may cause harm, including terrorism, racism, child sexual exploitation, suicide, eating disorders and revenge porn. Although much of the content is to be expected, there have been some surprises, such as the addition of tackling online scams (such as fake investment opportunities) which is apparently on the rise.
It is estimated that the new rules will impact around 24,000 companies in the UK alone, and its remit goes beyond targeting only technology giants or social media platforms, as previously expected. The OSB imposes extensive duties of care on providers of internet services that allow users to share user-generated content (user-to-user services) and providers of search engines (search services) (together, “regulated services”). The OSB has an international reach and is not limited to those companies based in the UK (i.e. the company does not need to be registered or based in the UK). Those regulated services with “links with the UK” are prime targets for the legislation.
Ofcom’s ‘roadmap to regulation’ was published in July to provide guidance for if and when the OSB becomes law. To assist regulated services, the roadmap included a timeline for implementing the OSB (including related consultations around guidance and codes of practice). The roadmap makes it very clear at the outset of its roadmap that the regulator is balancing diverging interests confirming in its principles that “Ofcom’s core duty under the Bill is to adequately protect citizens from harm by ensuring online services make appropriate use of systems and processes to keep users safe. In doing so, we will ensure our approach upholds the importance of freedom of expression online.”
Ofcom’s publication confirmed that the first phase of online safety regulation includes a ‘call for evidence’. This first stage consultation process is designed to “assess the risk of harm from illegal content mitigations around illegal content, child access assessments and transparency requirements”. The roadmap provides a range of detailed questions in Annex 1 to help the regulation in understanding the nature of the businesses that it will shortly be regulating, and what those businesses consider to be effective about their present voluntary processes, and thoughts and ideas for how safety improvements might be put in place without unduly affecting user experience. The guide is helpful to companies to prepare for the coming consultations and to start thinking of any risk assessments which may need to be put in place.
In terms of when this consultation may come into existence, this is now uncertain. For now, companies can take advantage of this delay to review the detailed guidance and plan their thoughts and responses to future consultations which are likely to be introduced in 2023 and 2024.
Whether you are a champion of the OSB, or a critic, both sides can likely agree that the OSB has noble ambitions. Notably, the balance between protecting online users whilst also safeguarding freedom of speech online have all been subject to debate. In particular, the OSB has been subject to a series of delays and criticisms over the past year, including most recently in the Prime Ministerial campaign.
One point which is still hotly debated in the House of Commons and by industry stakeholders is the scope of “lawful but harmful” content under the OSB. It is yet to be seen whether this definition and scope will be revisited by the new Prime Minister. The OSB was originally a priority for Boris Johnson’s government, with it being set out in the Conservative’s Manifesto in 2019, it is therefore clear that Boris Johnson’s resignation has impacted the current draft of the OSB.
As set out in our previous article, the OSB does not expressly prohibit insurers offering cover for fines issued by Ofcom under the new regulatory regime. Whilst it is possible that Ofcom may later issue rules expressly prohibiting the offering of insurance for OSB regulatory fines, as it is currently drafted, the OSB introduces the possibility of insured technology companies (offering regulated services) submitting claims in relation to fines imposed by Ofcom. Given the size of possible fines, the potential exposure for Insurers is significant. Further, it may impact directors under Directors & Officer policies should criminal sanctions be imposed by the regulator.
The coming weeks will shape whether or not the OSB will continue to take the same form as previously outlined. The new Prime Minister and likely new Secretary of State for Digital, Culture, Media and Sport will need to act quick should it stick to Ofcom’s proposed timetable for implementation. Watch this space over the coming months for further updates and developments on the OSB.
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