The Online Safety Act and terms of service

The Online Safety Act (OSA) introduces a number of transparency and information obligations which may require in-scope services to make changes to their terms of service. What needs to be included will depend on the type of service (user-to-user, search, and/or or Category 1, 2A and 2B), and the type of content on the service (for example, illegal content, content harmful to children, journalistic content, content of democratic importance).  One of the safety objectives which Ofcom is required to work towards is that all UK users of user-to-user services including children are made aware of and can understand the relevant terms of service, so this is a key compliance issue.

Some definitions and background

For the purposes of the OSA:

"Terms of service" in relation to user-to-user services is defined in s236 as meaning: "all documents (whatever they are called) comprising the contract for use of the service (or of part of it) by United Kingdom users".  Note that there are additional duties which may require changes to internal policies which are outside the scope of this article. 

Most additions to terms of service are required to be "clear and accessible".  In Volume 4 of its illegal harms consultation, Ofcom (the OSA's regulator) proposes that this should mean terms are:

• clearly signposted for the general public regardless of whether they have signed up to or are using the service
• locatable with the terms
• laid out and formatted in an easily readable and understandable way
• written to a reading age comprehensible for the youngest person permitted to agree to them, and
• designed to be usable by those using assistive technologies.

Note that there are similar (but not identical) requirements on search services to bring information to users' attention.  These obligations tend to require inclusion of certain information in a "publicly available statement". Some of these duties may (but do not have to be) satisfied by inclusion of the required information in terms of service.  Search services are, however, outside the scope of this article.

What to do now

On 11 January 2024, Ofcom published an information note on New rules for online services: what you need to know which suggests that in addition to responding to Ofcom consultations and to Ofcom information requests (where received), the only immediate compliance point is for providers of user-to-user services under s72(1) as set out below.   Ofcom says other changes to terms of service maybe needed when more of the new rules to protect users from illegal harms online come into force in late 2024, however, in-scope service providers should begin preparing to make changes now and, at the least, start working out an audit process for reviewing and, where necessary, changing relevant terms of service. 

Here we summarise OSA requirements relating to what in-scope user-to-user services must include in their terms of service.

You can access Part 1 of our Interface content on the OSA here, Part 2 here, and our full range of content on the OSA and the DSA here.