The government has tabled a package of amendments to the Online Safety Bill which is currently about to go to House of Lords report stage, and Ofcom has outlined revised plans for preparing to regulate online safety.
What's the issue?
The long-awaited and, to some, controversial Online Safety Bill (OSB) which aims to protect users, especially children and the vulnerable, from online harm caused by illegal content, is moving slowly through the legislative process. One of the main issues has been what sort of offences will be added to the face of the Bill, and how to clarify what is expected of those caught by it.
What's the development?
As the OSB moves to report stage in the House of Lords, the government has tabled a number of amendments, with the House of Lords also proposing changes. Meanwhile, Ofcom has updated its timings for actions relating to implementation of OSB, which it now expects this to receive Royal Assent in autumn this year rather than the originally anticipated first half of the year.
Government-tabled amendments
Age assurance and verification
The Bill will set out a clear, objective, high bar for effectiveness of these measures and define what is meant by age assurance, age verification and age estimation. In addition:
- Providers which publish pornographic content will be required to use either age verification or age estimation meeting the high bar, to prevent children accessing the content
- Tech companies allowing users to share pornographic content on their site will be required to use age verification or estimation meeting the high bar, to prevent children accessing pornographic content where they identify it on their service
- Ofcom will be required to set out guidance on the kinds of measures which will be considered effective, and produce a report on in-scope providers' use of age assurance technology
- Principles for the use of age assurance will be set out on the face of the Bill and Ofcom will be required to consider them when producing codes of practice for services allowing user interaction, and guidance for sites which publish pornography
- Dedicated pornography sites regulated under Part 5 of the OSB will be required to publish details of how they are protecting children from porn
- The Bill is being clarified to underline that the duties in Part 5 apply to all pornographic content generated or displayed on Part 5 services. This includes AI generated content.
- Ofcom is required to produce draft codes of practice for Part 3 and Part 5 within 18 months of Royal Assent.
Priority harms to children added to face of the Bill
New categories of primary priority and priority content harmful to children will be added to the face of the Bill as follows:
Primary priority content harmful to children:
- Pornographic content
- Content which encourages, promotes or provides instructions for suicide, self-harm or eating disorders
Priority content harmful to children:
- Content depicting real or realistic serious violence or injury to individuals or serious violence to animals, or graphic descriptions of them
- Content that encourages, promotes or provides instructions for an act of serious violence
- Content which encourages, promotes or provides instructions for a challenge or stunt likely to result in serious injury
- Content that encourages the ingestion, inhalation of or exposure to harmful substances
- Content which is abusive or incites hate on the basis of race, religion, disability, sex, sexual orientation or gender reassignment
- Bullying, including threats and degrading or humiliating content.
Bereaved parents/coroners' access to data
Ofcom will be able to require information relating to a child's social media account if requested to do so by a coroner and to produce expert reports where requested by the coroner. Ofcom will be able to share information with coroners without business consent. Category 1, 2A and 2B service providers will have to have clear policies for disclosing data regarding a deceased child, and processes for responding to disclosure requests from parents or guardians.
Government accountability for statutory codes
The grounds on which the Secretary of State can request changes to statutory codes by Ofcom is changing from "public policy" to a defined list (including public safety and health) and will only be permissible under exceptional circumstances.
Adult safety
Category 1 content providers will be required to ask their registered adult users whether they would like content tools to be applied. The onus will still be on the adults to choose. Ofcom will be able to require companies to provide transparency reports about content subject to user empowerment duties, and access to their terms and conditions and algorithmic design which may impact the likelihood of encountering such content.
Intimate image abuse
The so-called 'revenge porn' offence will be repealed and replaced with four new offences – the base offence of sharing an intimate image without consent, two offences of sharing with intent to cause alarm, humiliation or distress, or for obtaining sexual gratification, and a new offence of threatening to share an intimate image. The government also intends bringing forward a broader package of offences on this subject.
Other changes
- Ofcom will be required to produce guidance summarising measures that can be taken to reduce the risk of harm to women and girls and demonstrate best practice
- Recognised news publisher content remains exempt from providers' duties where it is distributed by them or by users unless it is edited or modified by a third party at which point it will no longer benefit from the exemption
- Companies will be required to retain CSEA data
- Clarification of fee regime
- Updates to Ofcom's statutory media literacy duty
- Extension of criminal offence applying to executives to include failure to tackle CSEA content
- A duty on Ofcom to research the role of app stores in children accessing harmful content
- Changes to give Ofcom oversight of algorithms used by providers in line with proposals for the CMA's powers under the Digital Markets, Competition and Consumers Bill
- Additions to the dispute resolution and redress provisions
- Changes to parliamentary scrutiny of certain definitions and thresholds
- Clarification that harms can be caused by cumulative content as well as the nature of the content, and that a combination of factors can increase the risk.
Lords-tabled amendments
Amendments have also been tabled in the House of Lords including an amendment to require social media companies to give independent researchers access to data in order to monitor harmful material. The amendment would require social media platforms to follow a code of practice to be produced and overseen by Ofcom, which would administer an online harm research platform. Other Lords' amendments include strengthening online age requirements, and requiring Ofcom to publish a code of practice to prevent violence against women and girls on social media platforms have, to a large extent, been reflected in the government-proposed changes.
Ofcom's revised timetable
Ofcom's plans for producing guidance and codes of practice to regulate the OSB have been revised as follows:
Phase one: illegal harms duties
Shortly after commencement of the OSB Ofcom will publish draft codes of practice on:
- illegal harms duties
- a register of risks relating to illegal content, and risk profiles of service characteristics that Ofcom's assessment has found to be associated with heightened risk of harm
- draft guidance to services on how to conduct their own risk assessments and on how services can identify illegal content
- draft guidance on record keeping, and
- Ofcom’s draft enforcement guidelines.
Phase two: child safety duties and pornography
Stakeholders will be able to read and respond to draft guidance on age assurance from autumn 2023 (subject to final timings of the Bill), and regulated services and other stakeholders will be able to read and respond to draft codes of practice relating to protection of children around six months after Ofcom's powers commence. Alongside this, Ofcom will consult on a register of risks and risk profiles relating to harms to children, and draft risk assessment guidance focusing on children's harms.
Phase three: transparency, user empowerment and other duties on categorised platforms
Ofcom has to advise the government on service categorisation thresholds and produce a register of categorised services for regulated services designated as Category 1, 2A and 2B. Ofcom will advise the government on the thresholds to enable it to make secondary legislation on categorisation. This advice will be informed by the responses to a call for evidence which Ofcom published on 11 July 2023. Ofcom aims to send its advice around six months after the OSB achieves Royal Assent. It will then publish the register of services as soon as possible after the government publishes the relevant secondary legislation.
Ofcom will consult with stakeholders on the substance of the overall duties for categorised services once its powers commence. It aims to consult on transparency guidance in the period between commencement and Ofcom finalising the register of services and will then consult on the remaining codes and guidance after the register is published. It plans to publish a further call for evidence in autumn 2023 on the duties which apply to categorised services.
What does this mean for you?
As much of the OSB relies on codes of practice and guidance in terms of how it is to be implemented and what is required to ensure compliance, Ofcom's revised timetable is useful. It does, however, show that certainty is still some way off, particularly as the Bill continues to be revised as it progresses through to enactment. Having said that, Ofcom has clearly already been hard at work as it now plans to publish its first codes of practice on illegal harms duties shortly after the Bill's commencement rather than within 100 days of enactment.
