Part of the fallout from Boris Johnson’s resignation was the pressing of the pause button on the Online Safety Bill, which is now stalled at the Commons report stage.

This was a relief both for opponents of the Bill and for companies that had already pushed it fairly low down their priority lists.

However, Ofcom has confirmed that its mid-September deadline for its Call for Evidence for the Online Safety Bill is going ahead.

The Bill was once allegedly on track to be enacted in early 2023 but is delayed until the new Prime Minister is in place and those in power have decided what to do with the controversial elements. Meanwhile, Ofcom is continuing to press ahead.

With September quickly approaching, it’s time for those who will be affected by the changes to not just offer opinions to the call for evidence, but to start scenario planning for the Bill’s approval.

Although parts of the Bill could be dropped or changed, it’s hard to imagine that it will not be passed in some format.

What does the Online Safety Bill mean for sites/platforms?

The Online Safety Bill will create a new regulatory and enforcement framework requiring sites to tackle illegal and other harmful content on their services.

It applies to all user-to-user and search services with links to the UK, and mirrors laws recently proposed in both the EU and the US, which are primarily designed to protect children from harm and limit people’s exposure to illegal or dangerous content, while (at least in theory) protecting freedom of speech.

Although many harms are covered, the Bill’s core focus is on:

• Serious illegal content such as terrorism-linked material
• Protecting children from online harm, especially any form of sexual exploitation
• Any content promoting self-harm or suicide
• Harassment and abuse

Sites and search engines that host user-generated content/allow users to interact with one another will have to take various steps, including:

• Assessing their user base and the risk of harm to users from content on their service, updating their risk assessment as and when aspects of the service change.
• Taking active steps to mitigate the risk of harm to users, including risks inherent in a site’s algorithms and cross-platform risk (i.e., one platform leading users to encounter harmful content on another platform).
• Implementing systems and processes as part of risk mitigation, including reporting for certain content (especially criminal), and having adequate complaints procedures.

On current assessment (and subject to linked legislation) the largest platforms will fall into separate categories with heightened obligations related to the number of users and the functionality of their services.

Those who pose the highest risk to users will be deemed a Category 1 service, subject to additional duties, including carrying out adult users’ safety risk assessments, protecting adult users’ safety from content that is not illegal but may still be deemed harmful, and protecting material of democratic importance and journalistic content.

From legislative debate and Ofcom’s remarks so far, it appears that there will be a level of realism to the approach, with an acceptance that no one could be expected to eliminate every possible instance of harmful content. Instead, services will need to show that they have taken their obligations seriously, thought properly about risk, and put effective measures in place to mitigate.

Nevertheless, indications are that these regulations will impose a huge administrative burden on sites.

What are the implications for non-compliance?

The Bill gives Ofcom substantial new powers, including the ability to enforce penalties up to £18m or 10% of companies’ global annual turnover. Ofcom has created hundreds of new jobs solely focused on overseeing the online space.

Ofcom will also obtain new criminal investigatory and enforcement powers, including the power to compel sites to provide information and witnesses to attend interviews, as well as new powers of entry, inspection and audit. There could also be criminal sanctions for senior managers and those who fail to comply with information requests from Ofcom.

On top of this, Ofcom will be able to apply to the English courts for business disruption measures, which could require sites to withdraw services, or in extreme cases, block access to non-compliant services.

What to provide for Ofcom’s Call for Evidence?

Ofcom is currently asking sites and stakeholders to provide information as part of its Call for Evidence by 5 pm on the 13th of September 2022, to help with matters the regulator anticipates will be part of the first consultation, currently set for 2023. This is new territory for everybody, including Ofcom – and it is a chance to have a meaningful say in the process.

Guidance sought includes the risk of harm from illegal content, mitigation around illegal content, child access assessments and transparency requirements. From this information, Ofcom aims to strengthen its understanding of the range of approaches and techniques platforms can employ to meet online safety duties. This will inform how it then carries out its regulation.

As well as the platforms that fall within the scope of the Online Safety framework, Ofcom is extending its Call for Evidence to regulators, academics, civil society organisations, consumer representatives and other stakeholders with an interest in or expertise in the area.

The Call for Evidence questionnaire is signposted with requests and prompts aimed at both service providers and wider stakeholders. The sections it addresses include:

• Preliminary questions
• Terms of service and policy statements
• Reporting and complaints
• Moderation
• Actioning content and sanctioning users
• Design and operation of the service, including functionalities and algorithms
• Child protection
• Transparency

Those who use the opportunity for input through the Call for Evidence can help to streamline Ofcom’s approach to managing online risks, whilst ensuring that any concerns they have can be put on the record. The response form can be accessed through Ofcom.

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