Draft Online Safety Bill: Regulating the online world
On 12 May 2021, the UK government published the draft Online Safety Bill (the “Bill”) which establishes a new regulatory regime to address illegal and harmful content online. The Bill imposes a duty of care on specified online service providers to assess, monitor and take action against illegal or harmful online content. The penalties for non-compliance are high, with Ofcom (the UK’s communications regulator) gaining new online safety powers to fine businesses up to £18 million, or 10 per cent of qualifying revenue, if they fail in their new duty of care.
What services are captured?
In order to tackle the growing concern of online safety, the Bill expands the traditional view of liability for content sitting with publishers, to capture intermediaries that facilitate the sharing of content online. Services regulated by the Bill include:
- “user-to-user services” meaning any online service which allow users to share and upload user-generated content (i.e. social media providers); and
- “search services” including search engines which enable users to search multiple website and databases online.
The territorial reach of the Bill is widely defined and will apply to service providers within the UK but also to services based outside the UK with ”links to the UK”.
What are the duties?
The Bill takes a risk-based approach by creating three categories of services, each subject to a different level of regulation. Duties will vary depending on the type of organisation and the category in which the organisation falls. Duties imposed on all online service providers include:
- completion of an illegal content risk assessment;
- mitigation and management of risks caused by illegal or harmful content;
- duties to protect the right to privacy and freedom of expression;
- the introduction of processes to facilitate reporting and redress for users; and
- a requirement to keep records demonstrating compliance with the Bill.
Additional duties apply to organisations which are “likely to be accessed by children” or which classify as a category 1 service. There are threshold conditions which must be met in order to fall within each category. However, the threshold conditions are not yet published and will be set out in supplementary legislation made by the Secretary of State.
There are a range of exempt services outlined in the Bill including email services, text messaging services, intermediary services enabling online reviews as well as user-to-user services provided by foreign States or public authorities discharging public functions.
The Bill will now be subject to pre-legislative examination by a joint committee of Members of Parliament on its road to enactment. If the Bill is enacted it will come into force without a transition period and businesses should be ready to comply with the regulation.
The Bill takes a risk-based approach to regulation that introduces proportionality to the online safety obligations of online service providers. While this may benefit smaller online businesses who may be able to take a proportionate approach to the regulatory burden, it also increases the uncertainty and lack of clarity on how businesses can comply with the Bill. While the Bill includes definitions for what may constitute harmful content, ambiguity remains for businesses trying to determine when content is harmful and to whom. Soon to be published supplementary codes of practice may provide assistance in this regard but businesses will still have to decide not only what content is illegal, but also what content may be harmful to their users. In addition, the Bill imposes obligations on businesses to create mechanisms and processes for reporting and documenting their compliance, creating a significant regulatory burden.
The debate remains whether online service providers should be the gatekeepers of online safety. There are ongoing concerns of excessive censorship and online monitoring associated with the enhanced duties on online service providers to pro-actively monitor user content and mitigate risk, including taking down user content. Businesses will inevitably find it difficult to mitigate and monitor online harmful content while at the same time safeguard user’s rights to freedom of expression and right to privacy.
Online service providers have grown and pervaded communication and social interaction in an increasingly digital world and have done so in an environment where regulation has not traditionally kept up. The Bill is addressing the undeniably important issue of online harm in today’s digital world but it remains to be seen whether the Bill strikes the right balance between protection and privacy.
2020: Influencer, 2021: Creative Director – what could go wrong?
Coded messages for landlords and tenants
“What does the code of practice mean for landlords and tenants? Read more here”
Jason Saiban writes for Food Manufacture on the food industry's climate change challenge
The key challenge will be how the environmental targets are actually met.
Grab the tail by the horns - Why is tail spend so critical in today’s outsourced portfolio?
It’s usually invisible, but in all likelihood, you’ve got tail spend.
Mark Hill writes for In-House Community Magazine on solutions templating, a new priority for in-house legal teams
Removing the burden from legal teams, contract managers and administrators.
Olivia Crane quoted by SoGlos on the increasing issue of cyber fraud being faced by businesses in Gloucestershire
Cyber fraud has cost Gloucestershire businesses around £369,800 in the last 13 months.
Tattoos, athletes and image rights
Campaigns featuring athletes often include visible tattoos and a number of recent legal cases demonstrate the issues that may arise.
Food Sector steps up on climate goals
Blue Sky Linking
Daniel looks at Sky's recent success in obtaining interim protection from infringement of their broadcast rights
Don’t Gamble on Bingo Ads, Warns ASA
The ASA has issued a reminder to advertisers that bingo adverts will be treated as gambling ads for the purpose of standards regulation.
Recording Phone Calls: Don’t take Consent for Granted
What if an interviewee who is being called and interviewed “live” does not actually know he/she is on live television?
Continuing Progress in the Sphere of Inclusive and Non-Discriminatory Advertising
The latest developments from the ASA, CAP and BCAP relating to the advertising regulators’ attempts to tackle discrimination in advertising.
eCommerce and the Post-Brexit State of Play
Key UK and EU legislation governing how online platforms deal with consumers and their business users.
UK and EU launch two-pronged attack into whether Facebook is abusing a dominant market position
The CMA and the European Commission have said that they intend to work together closely as their respective investigations develop.
Jason Saiban and Caroline Swain among contributors to the ICLG Guide on Digital Business Laws and Regulations in the UK
An overview of the laws and regulations for digital businesses operating in the UK.
Counterfeit goods – online platforms and luxury brands take a new collaborative approach
Online retail has been increasing for the best part of a decade due to a shift in consumer behaviour.
Charles Russell Speechlys proud to sponsor the ‘Outstanding Achievement’ award at the final Sunday Times Virgin Fast Track 100 awards
The awards celebrated the successes of Britain’s 100 private companies with the fastest-growing sales.
New foreign ownership rules take effect on 1 June 2021
Trade Marks - what is bad faith?
In any legal dispute, the term ‘bad faith’ is often banded about.
Public Company Update - May 2021
Read the May 2021 edition of our biannual Public Company Update.