The Online Safety Bill (OSB), is a bill currently in draft. The OSB is a bill that will apply to online services where a service hosts user-generated content (UGC). These services are specific to services that allow for online interaction between users and search engines. This bill seeks to impose a duty of care on companies providing these online services in order to limit the spread of illegal content on these services. This will also extend to content that is not necessarily illegal but can be deemed as harmful.
This duty of care will have to be met by these online service providers (OSPs) through the use of systems and measures in order to improve the safety of their users. The overseeing entity to ensure that online service providers are meeting this duty of care is Ofcom. Ofcom’s role will be to ensure compliance with the OSB. The OSB’s purpose will have it rescind existing legislation on video-sharing platforms as the OSB will regulate instead.
What is the OSB looking to limit?
In essence the OSB is looking to limit two things; illegal content and harmful content. Illegal content can include terrorism offences, offences specified in regulations made by the Secretary of State as examples. Harmful content can include content harmful to children or adults. The focus is content harmful to the individual rather than society. What is deemed as harmful content will be content that the OSP has reasonable grounds to believe that the nature of the content carries a material risk of having or indirectly having, a significant adverse physical or psychological impact on a child or adult of ordinary sensibilities.
What services will be affected?
As previously stated, the OSB will apply to OSPs that do one or both of the following:
- Facilitates online interaction between the service’s users where at least one of the users are in the UK (either publicly or privately)
- Hosts UGC that can be accessed by users in the UK
- Search engines
There can be exceptions to this, for example where parts of an OSP allows for internal business communication. The OSP would have to meet certain requirements in order to be exempt. Essentially, the act is focused on OSPs that provide services to UK users. Therefore, if the user base is not in the UK then the OSB will not apply.
The following is outside the scope of the OSB:
- Business-to-business services
- Content published by a news publisher on its own website. This will be extended to including user comments on that same content
- Internet service providers. However, these internet service providers will have to work with Ofcom in implementing business disruption measures
- Low-risk businesses, such as businesses that provide online services with limited functionality (such as retailers that host reviews on their products or services)
What is expected of these services?
As previously mentioned, there will be a duty of care imposed on OSPs due to the OSB. Companies will have to put in place measures and systems in order to improve the safety of their users. There will be a set of guiding principles that focuses on improving user safety, protecting children and proportionality with the measures implemented.
Proportionality simply means that if there is a higher chance of a child accessing illegal or harmful content then the OSP must do more in ways of measures and systems to prevent this. What is deemed as more likely will depend on the service that the OSP is providing.
Ofcom’s role in relation to the OSB
Ofcom will have the authority to ensure that OSPs comply with the OSB. Therefore, Ofcom will have certain regulatory powers conferred to it in light of the legislation. Ofcom will have the duty of preparing codes of practice and guidance in order to outline the steps OSPs should take in order to meet their duties under the OSB.
In the event that an OSP fails to comply with the OSB then Ofcom will have the authority to issue fines of up to £18million or 10% of global annual turnover, whichever is higher, for breaches of the OSB. There may also be the possibility of enforcement action, in which Ofcom can carry out measures to prevent or limit OSPs from servicing UK users. The government is planning to establish a statutory appeals route in the event an OSP falls foul of the OSB and Ofcom acts.
The OSB is still in draft so the final form of the legislation is still subject to negotiation, however the core spirit of the legislation will not change. The goal or focus of the OSB will be to limit or prevent illegal or harmful content by imposing a duty of care on online service providers. How this duty of care is to manifest itself, as well as the full scope of applicable OSPs relevant to the legislation may shift ever so slightly.