The UK Online Safety Act becomes law: What does this mean for businesses?
Thu 2 Nov 2023
After almost four years of significant debate and media discussion in the UK, The Online Safety Act (also known as the Online Safety Bill) is now officially law. It received Royal Assent on 26 October.
The Online Safety Act aims to regulate online safety by placing legal responsibility on online service providers to prevent and remove specified types of harmful content, particularly content deemed harmful to children.
Ofcom will be the appointed regulator and will be enforcing the Online Safety Act.
Providers who fail to comply will face significant fines, with Ofcom being able to fine platforms up to £18 million or 10% of their global annual revenue, whichever is higher.
Who Does The Online Safety Act Apply To?
As well as UK service providers, Online Safety Act applies to providers of regulated services based outside the UK, who provide services to UK-based users.
The UK Government expects that at least 25,000 companies will be in the scope of Online Safety Act, which includes:
- User-to-User Services: Providers of internet services that allow users to encounter content generated, uploaded, or shared by other users. This is likely to include social media platforms such as Tik Tok and Snapchat, as well as any platform with a user-to-user messaging feature; and
- Search Services: Providers of search engines, which enable users to search multiple websites and databases.
Companies in scope will be categorised by Ofcom as either ‘Category 1’ services or ‘Category 2A or 2B’ services, with Category 1 services facing the more onerous obligations.
What Does The Online Safety Act Cover?
OSA imposes new duties of care on services.
Duties to carry out suitable and sufficient illegal content risk assessments
This will involve providers of online services maintaining a clear understanding of harms that users might face, and implementing an effective risk management processes to mitigate these.
Duties regarding illegal content
Online services will need to take proportionate measures to mitigate and manage risk in relation to illegal content, which importantly will involve preventing users from encountering such content on their services at the outset.
This marks a significant change, as online service providers were previously only required to act rapidly in removing unlawful content once they were put on notice of the presence of such content.
Services must also include provisions in their terms of service to indicate how they are protecting users, and these provisions must be clear and accessible to users.
Duties in regard to content reporting and complaints
Services will need to allow users methods of easily reporting illegal content, as well as operating an accessible complaints procedure for users. Notably, this complaints procedure will also have scope for the removal of content.
Duties in regard to user empowerment
This duty involves a responsibility to include features within their service to permit users to control and manage harmful material they see online. Services must also carry out risk assessments in relation to this duty.
Duties in regard to fraudulent advertising
This duty will require services to prevent individuals from encountering fraudulent advertisements, minimise the length of time for which fraudulent advertisements are visible and swiftly remove fraudulent adverts once reported.
Further rules apply where services are deemed likely to be accessed by children. The above duties are caveated by a measure of reasonableness for the size and capacity of the online services provider in question.
About the Author
David Varney is a partner in the technology team at independent UK law firm Burges Salmon. He advises on a range of data protection, technology, intellectual property and commercial matters for clients in a number of sectors, including technology, financial services, media, retail and energy.
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