What's the issue?
The UK and EU have been pursuing parallel legislative attempts to regulate user generated content online. As we discuss here, the EU's Digital Services Act (DSA) is intended to ensure a safe, predictable and trusted online environment, addressing the dissemination of illegal content online and the societal risks that the dissemination of disinformation or other content may generate". (Recital 9). The UK's Online Safety Bill (OSB) meanwhile is intended to "deliver[s] the government’s manifesto commitment to make the UK the safest place in the world to be online while defending free expression" by requiring platforms "to tackle and remove illegal material online, particularly material relating to terrorism and child sexual exploitation and abuse."
The approaches have similar aims but create very different regimes and the headline difference is that the DSA tackles illegal online content, whereas the OSB, at least so far, also tackles user generated content which is lawful but harmful.
What's the development?
The DSA which was proposed in December 2020, has been published in the Official Journal and will come into force on 16 November. It will, for the most part, apply from 17 February 2024. Meanwhile, the OSB, initially introduced to Parliament in its current form in April 2022, over a year after it was first published, has stalled.
The OSB was widely expected to become law by the end of 2022, and may still do so. However, it was paused at the report stage after its second reading when Boris Johnson stepped down as Prime Minister. Liz Truss, his ill-fated successor, was widely reported as wanting to revisit the legislation. On 20 September 2022, the new DCMS Secretary of State, Michele Donelan, appeared to confirm this, speaking on BBC Radio 4's Today Programme. While not going into detail, she suggested there would be changes although they would not impact rules protecting children. There followed informed speculation that the changes would remove provisions around lawful but harmful content, arguably in the interests of protecting free speech.
Another few weeks brought the UK another Prime Minister, albeit with Donelan re-appointed in post. Having said the OSB would return to Parliament in the Autumn, it was dropped from the order of business a second time at the end of October. A DCMS spokesperson confirmed that the government would bring the OSB back to Parliament "as soon as possible", but as we approach Christmas, it is unclear when this might be.
Indications are that the government is keen to proceed before the end of the year, however, it is less certain what approach will be taken under the latest Prime Minister Rishi Sunak. During his failed leadership campaign in the Summer, Sunak, like Truss, promised to remove the 'legal but harmful' provisions. However, former digital minister Damian Collins has recently been reported as saying that removal of lawful but harmful content will be required where that content breaches a platform's terms and conditions, with Ofcom enforcing compliance. This suggests some form of regulation of 'lawful but harmful' user generated content will remain.
What does this mean for you?
EU and UK online service providers and search engines, but also any service that allows one user to encounter content from another user, will need to stay on top of this area of regulation. The EU's plans are now finalised. You can read more about them in our Interface edition which covers key aspects in detail. As for the Online Safety Bill, all may become clear – or at least clearer – in the next few weeks. Given, however, that the OSB provides for a number of Ofcom Codes to set out further detail, full clarity may be some way off. In the meantime, you can read more about what we can expect under the current draft here.
