Social media & online search engines, now UK internet gatekeepers, whilst Ofcom assumes role of internet watchdog
The new law is a fundamental shift from the reactive role that ISPs have held under the E-Commerce notice and take down regime, and is a move towards a proactive responsibility to ensure robust systems and processes are established as sufficient guardrails to protect against certain harmful content being hosted or indexed.
In an era dominated by social media and the internet, the UK has begun the process of regulating the internet, at least in so far as to protect UK internet users from online harm through the 'Online Safety Bill' soon to be the Online Safety Act (the OSB).
It is a much anticipated piece of legislation for the UK and comes at a time when the EU has undergone an overhaul in its online safety laws and e-commerce rules with operative parts of the Digital Services Act (EU) (the DSA) coming into force back in November 2022, and Member States implementing into domestic law by February 2024.
The DSA has a broad scope and regulates many aspects of digital services, including liability for online content and services, targeted advertising, know your business customer requirements, transparency for users, and managing systemic platform risks.
The UK's OSB has considerably changed since it was initially proposed in a white paper by former Prime Minister, Theresa May.
The OSB has now shifted to focusing on establishing a safer online environment for children and young people, protecting adults and children from harmful content, and tightening laws on illegal content. The real world effect of this, is that online intermediaries (ISP's) who host and index online content shall essentially assume the roles of gatekeepers. Ofcom shall be charged with the responsibility of watchdog.
This is a fundamental shift from the reactive role that ISPs have held under the E-Commerce notice and take down regime and is a move towards a proactive responsibility to ensure robust systems and processes are established as sufficient guardrails to protect against certain harmful content being hosted or indexed.
Illegal content
Whilst the OSB will mean internet service providers, which includes social media platforms, have to remove all illegal content such as terrorism and child abuse related content, it also will bring in new offences for example, for the first time it will be illegal for users to create content which promotes self-harm or suicide, and any such material which does emerge in this respect will have to be removed by the platforms.
Most platforms will have continuous risk assessment duties relating to illegal content, and written records of such assessments must be kept and updated with proactive steps to mitigate and manage risks of harm to individuals caused by illegal content as identified in their risk assessments. Significantly there is a requirement for platforms put in place adequate systems and processes to protect user safety, and platforms will be obligated to have in place processes by which users can report illegal content (as well as harmful content) and they will be required to operate accessible complaints procedures for users.
What is meant by adequate systems and processes shall remain to be seen, but the procedure already in place under s.5 of the E&W 2013 Defamation Act is likely to frame that debate.
Harmful content
Not all harmful content which appears online is actually illegal, for example, it is not a criminal offence to promote or glorify an eating disorder but nonetheless, it could be detrimental to a young person's wellbeing if they were to have access to such content. The OSB will place obligations on social media platforms to put in place more stringent measures to prevent children or young people from being exposed to this kind of material. Age checking procedures, age limitations and provisions for parent/guardians to report problems online and providing them with tools to give more control over the type of content accessed by their children, are some of the proposed measures contained within the OSB to reform online safety.
Where proportionate, platforms will need to include features to give adults more control over what content they view online so that they can reduce their likelihood of viewing harmful content, or receive an alert from the service as to the harmful nature of the content. The social media platform, Instagram, has already taken positive steps by implementing new technology which trawls images and text across its platform in order to identify potentially harmful content. Such identified posts are made less visible to users and will contain a warning alert that such content is in breach of their Community Guidelines.
Ofcom will be the regulator in charge of enforcing the duties on services contained within the OSB and they will check that services are complying in protecting their users. Under the legislation, Ofcom will be given powers of enforcement to take action against non-complying platforms. These powers of enforcement really give the OSB 'teeth' – in that a monetary penalty can be issued against any platform which fails to uphold their duties to users, and in extreme cases Ofcom can prevent the platform from being accessed within the UK. Ofcom will also require services to publish annual transparency reports and have clear and accessible terms of service that state how users are to be protected from illegal and harmful content.
The internet age has provided for infinite opportunities of communication, expression and access to information. Free speech and freedom of expression remain imperative for an open and democratic society, however with the unprecedented evolution of the digital landscape, new forms of harm such as cyberbullying, hate speech, revenge porn and child exploitation have emerged. The OSB seeks to redress these issues by imposing legal obligations on social media companies and other online platforms to protect users from being exposed to illegal and harmful content.
The OSB at the time of writing, has received assent by the House of Lords and shall be passed into law sometime in October 2023.
If you wish to seek further advice on any of the issues discussed please contact the author, Olivia O'Kane, below.
