Important news for many online services revealed on 6 July 2022 was swamped by the turbulent events surrounding the downfall of Boris Johnson. Many tech companies have known for months that they are to be placed under a new duty of care to protect their users from harm under the recently published Online Safety Bill (the “OSB”).
The Conservative Party has been pledging such a Bill since 2018. So, although it may be tweaked, the legislation is likely to go ahead, despite the installation of a new Tory leader (and probably new Home and DCMS Secretaries) in the coming months.
The duty of care will be enforced by the media regulator, Ofcom. On the 6th of July, Ofcom published two documents which give online services and other stakeholders long awaited clarity about its approach to OSB regulation, and what online services need to do to comply with the new rules and avoid tough enforcement action. SMB consultant and former senior Ofcom executive, Trevor Barnes, highlights the most significant points online services and others can learn from the new documents.
Even since the revised OSB was first published in March this year, online companies have been speculating about what this new and far-reaching legislation might mean for them. It was clear that Ofcom would be given sweeping new powers to protect online users but until the 6th of July, Ofcom had revealed nothing substantial about how it would exercise them and implement the new law.
The Call for Evidence confirms the enormous range of services to be caught in the net of the new regulation: from social media platforms to messaging apps to some online games. Many online services at risk of being regulated under the new statute area are already assessing the wide-ranging implications for their businesses and their users.
The Call for Evidence underlines that Ofcom’s priority focus in the year ahead will be illegal content, the subject of Ofcom’s first planned consultation scheduled to begin in March 2023. All regulated user-to-user services, large and small, will be obliged to carry out a risk assessment against this content and put in place measures to protect users against it.
To help inform that first consultation, Ofcom, therefore, asks stakeholders to provide information about how for example they currently recognise and deal with illegal content, protect children, and make public their policies and activities in this area. The closing date for responses is 13 September 2022.
The Roadmap underlines how seismic the forthcoming changes are for Ofcom as well as for the online services it will regulate. Ofcom will be creating between 300 and 350 new jobs in this area and a new work hub in Manchester. In keeping with Ofcom’s largely considered, evidence-based, and pragmatic approach to regulation since its creation in 2002, one reassuring message from the Roadmap for online services is confirmation of Ofcom’s approach to the OSB.
Unlike broadcasting and on-demand platforms, Ofcom will not be investigating individual pieces of content on the internet. Instead, the Roadmap stresses that regulated companies will be held to account against the adequacy of their risk management and safety systems.
They will for example be forced to carry out thorough risk assessments against certain types of harm and introduce proportionate systems and processes (like algorithms) to protect users, consistent with the results of those assessments. Services will need to be ready to share these risk assessments with Ofcom, and publish summaries.
The Roadmap confirms for the first time that Ofcom’s relatively new regime for regulating Video Sharing Platforms (VSPs) like TikTok, introduced in 2020, has influenced and will strongly influence, its approach to online safety. So for example, although Ofcom’s guidance on risk assessments to protect vulnerable people (see Practice 7.15, Broadcasting Code) may be taken into account by Ofcom when drafting its guidance on OSB risk assessments, it will be far less significant than what the regulator says about the issue in its Video Sharing Platform guidance.
The two new documents reveal that Ofcom regards its implementation of the new legislation as a process. It is likely to be spread over a couple of years, starting in early 2023, with focused engagement and collaboration with stakeholders during this time. The Roadmap sets out on pages 12, 14, 16, and 18 indicative timetables of activities expected to be carried out by the regulator and potentially regulated services – from the expected dates of Ofcom’s various consultations to the final risk and access assessments to be completed by online services by the end of 2024.
The government’s online safety legislation is highly unlikely to share Boris Johnson’s demise. Online services that have not so far engaged with the OSB should do so urgently. Ofcom’s two newly published documents are important signposts to the future and the Call for Evidence provides stakeholders with a timely opportunity to influence the regulator’s first regulatory steps in this controversial area.
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