Joint Committee publishes recommendations on the Online Safety Bill

What recommendations have been made by the Joint Committee on the Online Safety Bill and how are these likely to affect service providers?

The key takeaway

The recommendations indicate that the legislation will adopt an interventionalist approach to the regulation of service providers. Those regulated will be held to a very high standard to protect users from harmful content online and could face significant fines if they fail to comply.

The background

The draft Online Safety Bill (OSB) was published by the UK government in May 2021 containing a number of proposed regulations to apply to search engines, social media providers and services that host user-generated content.

The aim of the OSB is to improve user safety and prevent the spread of harmful content online. This includes content that is not necessarily illegal, but still harmful. It is set to impose a duty of care on service providers that fall within its remit to have adequate systems and processes in place. Ofcom will oversee compliance, and if an organisation is seen to fall below the required standard, they will have a power to issue fines of £18m or 10% of the company’s global annual turnover. The report is due to be put to parliament for approval later this year.

The development

 Following a review of the draft OSB, the Joint Committee has published their report outlining a number of recommended changes. These include:

• additional responsibilities for Ofcom including increased powers to investigate, audit and fine those falling within the scope of the legislation
• Ofcom setting the standards by which companies will be held accountable for example via mandatory Codes of Practice
• allowing Ofcom to require service providers to conduct internal risk assessments. These would require the service provider to record reasonably foreseeable threats to user safety from both content and harmful algorithms
• an ombudsman service that enables individuals to file complaints
• a requirement that there should be a senior manager at board level who is designated as the Safety Controller. The Safety Controller would be liable for any failure to comply with their obligations as regulated service providers where it is evidenced that there have been repeated failures resulting in a significant risk of serious harm to users
• an increase in the types of service providers falling within the scope of the legislation, including those involved in paid-for advertising (as a means to crack down on scam adverts and fraud) and pornography sites (to help shield children from their content)
• a broadening of the types of online content deemed illegal, including cyberflashing, the promotion of self-harm and the deliberate dissemination of flashing imagery to those with epilepsy (known as Zach’s law), and
• a requirement that service providers should be required to create an Online Safety Policy, to function in a similar way to terms and conditions of service.

Why is this important?

It’s likely that the Joint Committee’s recommendations will be reflected in the final legislation. The report reflects an interventionalist approach and a willingness to set the bar high for service providers, and to hold them accountable when they fall short.

Any practical tips?

The OSB represents a major shift in the regulation of online content and all service providers caught within its scope need to start thinking now about its impact on their operations. This includes consideration of the policies and procedures which may need to be adopted as well as engagement of key stakeholders in the business to ensure they understand what the OSB will mean in practice.

Above all, the recommendations by the Joint Committee serve as advance notice of just how seriously the new duty of care needs to be treated, and how wide its practical impact is likely to be on those engaged with online content.

Spring 2022