Doubts over UK Online Safety Bill should not delay business preparations

The Online Safety Bill was introduced into UK parliament earlier this year. The draft legislation is wide-ranging and would, if given effect in its current form, impose extensive obligations on online services providers regarding illegal and harmful content that appears on their platforms. Experts at Pinsent Masons have previously expressed concern that the aims of the Bill – to reduce online harms – could be undermined by a lack of clarity over the way the legislation is to be implemented and enforced.

In the Queen’s Speech in May, the government announced its plans to take the Bill through the parliamentary process over the course of the next parliamentary year. However, the BBC has now reported that the government has confirmed there will be no progress on the passing of the Bill until the autumn at the earliest. This follows the recent announcement by prime minister Boris Johnson of his intention to resign from his position once a new leader of the governing Conservative party has been elected.

Technology law expert Meghan Higgins of Pinsent Masons said that it is not surprising that the political uncertainty is having an impact on the legislative agenda. She said that the very future of the Online Safety Bill, and not merely the timing of its progress through parliament, could be in question given the scepticism some Conservative leadership candidates have expressed about the proposals in the Bill.

The latest news on the Online Safety Bill follows a recent publication of a ‘roadmap to regulation’ by Ofcom, the UK authority earmarked as having responsibility for regulatory oversight under the proposed new regime. Higgins said it is important businesses impacted by the legislative proposals take note of Ofcom’s plans despite there being a degree of uncertainty over the Bill’s future.

“Although subject to change if there are further amendments to the Online Safety Bill, Ofcom’s roadmap to regulation provides a helpful guide to the roughly 25,000 online services the government estimates will be in scope of the proposed new regulatory framework,” Higgins said.

“The roadmap identifies how Ofcom will prioritise its responsibilities and that its initial focus will be on producing guidance for services in conducting risk assessments and developing a code of practice addressing illegal content. There is no reason for services that are in scope of the proposed regulatory framework to wait for those documents to begin considering the risks associated with their platform. We would encourage services to consider the availability of illegal or harmful content and any specific risks associated with their user base as early as possible,” she said.

Ofcom’s core duty under the Bill is to protect citizens from harm by ensuring online service providers make appropriate use of systems and processes to keep users safe. Those proposed powers would come into force two months after the Bill is passed into law. The timeframes are subject to change if there are amendments to the substance of the Bill during its passage through parliament, or to the timeframe in which it is passed.

Ofcom said it would take early action to address what the government has said are the most significant online harms – these include the dissemination of child sexual abuse material, grooming, and the spread of content relating to terrorism. It said it would also work with other agencies to tackle online fraud, as well as work to prevent children from accessing inappropriate and harmful content online.

Ofcom said its first step after its powers come into force would be to publish and consult on draft guidance for risk assessments and its code of practice covering illegal content to help services understand how they can comply with their new duties under the Bill. The regulator said it would subsequently seek to publish codes of practice on the protection of children and the protection of adults from legal but harmful content once secondary legislation provided for under the Bill takes effect.

In parallel to preparing the draft codes, Ofcom said it would engage with high risk and high impact services to understand their existing safety practices and how those practices can be improved.

Ofcom has also issued a call for evidence on assessment of the risk of harm from illegal content, mitigations around illegal content, child access assessments and transparency requirements. It has further requested evidence to better understand the approaches and techniques that services can use to meet the duties imposed under the Bill.

Online service providers have been invited to indicate how they currently assess the risk of harm to individuals in the UK from illegal content presented by their service, and Ofcom is also seeking information about the extent to which the provider factors in evidence on users’ behaviour and age when considering potential risks, and other factors that may increase or mitigate risks such as the user population, business model, or features and functionalities.

“The proposed new regulatory regime on online safety in the UK is expected to be extraterritorial in effect, so providers based outside of the UK whose services are accessed by a significant number of UK users would be in scope,” said Lottie Peach of Pinsent Masons.

“With responses to Ofcom’s call for evidence due by 13 September, this is an opportunity for providers to shape what Ofcom’s regulatory approach will look like. Ofcom has asked online services to provide details of the practical measures they already take to tackle the risk of harms, including illegal content, online. This is a valuable opportunity for providers to share information with Ofcom and highlight their concerns about the issues that may arise in complying with the duties which, as currently drafted, impose extensive and possibly onerous duties on service providers caught within the scope of the Bill,” she said.

Rosie Nance, also of Pinsent Masons, added: “The call for evidence paper provides useful guidance to in-scope services about the issues, content and functionalities that they will need to prioritise in beginning their compliance efforts. We would encourage services to begin to work through the questions raised in the paper as early as possible even if they don’t intend to formally submit a response to Ofcom.”

In its roadmap, Ofcom responded directly to concerns that have been raised that the Online Safety Bill will undermine freedom of expression. Ofcom said its powers would not extend to taking action in relation to individual pieces of content.

Ofcom also made clear that while it would take steps to understand the reach and impact of harmful content on services, it would not assess services’ compliance with the Online Safety Bill by reference to the extent to which harmful or illegal content is present. Instead, it said it would consider the services’ use of systems and processes to protect users.

The system of regulation proposed under the Online Safety Bill would introduce obligations on online service providers based on categorisation of risk.

Ofcom confirmed that it will be open to Category 1 services to choose whether to host content that is legal but harmful to adults and that it will not compel those service providers to remove that content. Category 1 services would, however, be required to assess risks of certain types of legal content that may be harmful to adults – although those types of content have yet to be identified – and apply those terms consistently.