The Online Safety Act receives Royal Assent
6 November 2023
The 26 October 2023 saw the long-awaited passing of the controversial Online Safety Bill. Bold in its ambition to make Britain the safest place to be online, the Act places the onus on tech companies to design and operate their services with safety in mind by cracking down on illegal content and content harmful to children. Whilst Ofcom, tasked with enforcing these new rules, does not expect harmful and illegal content to be entirely eradicated online, it will expect that companies implement suitable measures to keep children and adults safe and will impose strict sanctions for those that don’t.
When considering which companies fall within the ambit of the OSA 2023, a few obvious big tech industry players spring to mind, however it’s estimated that up to 20,000 small businesses will also be affected by the Act which targets providers of user-to-user services and providers of search services.
The Act clarifies that user-to-user services are those which allow people to generate and share content for other people to see. Obvious examples are social media and video sharing services, but the categories of companies potentially affected by the act will also include online marketplaces, dating, review, gaming, information sharing, file, and audio sharing services, to name but a few.
Search services, as defined by the Act are those that have a search engine allowing users to search more than one website or database for information, websites, or other content.
Under the Act, companies falling within the scope are required to identify risks of harm to their users and take steps to prevent them from illegal content.
New criminal offences
The Act creates offences not just for those individuals involved with creating and distributing harmful or illegal content, but also for high level executives within companies which fail to comply with their obligations. Further, Ofcom, as the new regulator for online safety, will have investigatory powers to search both premises and company data as well as the power to impose fines of up to 10% of annual turnover or £18m whichever is higher.
Where to start
Ofcom has already begun to publish guidance to aid businesses to prepare, with a draft code of practice for compliance anticipated on 9 November. In advance of and alongside this, companies should critically evaluate whether they could be considered to fall within scope. Something which may not be obvious at first glance.
Those who deem that they do, should set about conducting risk assessments for both prevalence of illegal content and content harmful to children. Keeping up to date with secondary legislation and fresh guidance will be key.
If you have concerns that your business may fall within the scope of the Act and would like further advice on how to prepare, please contact our Regulatory & Corporate Defence Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2023.