Ofcom’s initial consultation on the Online Safety Bill – A brief overview

Following the introduction of the Online Safety Bill (“the Bill”/” the Act”), Ofcom has launched the first of four major consultations which will assist the regulator as it works to establish the new regulations to be introduced under the Bill. The consultation which runs until 23rd of February 2024 will consider a number of areas including but not limited to the following:

The causes and impacts of illegal harms

In their consultation, Ofcom have focused on 130 priority offences defined in the Act which have been grouped into 15 broad kinds of illegal harm. These include:

• Child Sexual Exploitation and Abuse
• Terrorism
• Fraud
• Hate speech and
• Foreign Interference Offences

Ofcom has assessed the impact of illegal harm on both an individual and wide-spread basis. They have also identified risks and proposed conditions to be put in place to manage these risks.

How services should assess and mitigate the risk of illegal harms

Ofcom are proposing to define services into two groups of sizes: large or smaller, and sub-divide these into categories of ‘low risk’, ‘specific risk’ and ‘multi risk’.

Certain measures will apply to all user-to-user services or all search services with others being delegated measures depending on their size and the category of risk they fall within.

Measures proposed for user-to-user services:

User to User services will need to act to prevent users encountering content which could amount to one of the 130 ‘priority offences’. They will also have the duty to take down certain types of ‘non-priority’ illegal content.

Some examples of proposed measures which will apply to all user-to-user services are as follows:

• Services must have a named person who is accountable to the most senior governance body for compliance with illegal content safety duties.
• Services must also have reporting and complaints duties and content moderation systems or processes which are designed to take down illegal content swiftly.
• Accounts should be removed if there are reasonable grounds to infer that they are run by or on behalf of a terrorist group or organization proscribed by the UK Government.

Measures proposed for search services:

Examples of proposed measures that will apply to all search services include:

• Having systems and processes which are designed so that search content that is illegal content is deprioritised or deindexed for UK users and
• Having complaints system and processes which are easy to find, easy to access and easy to use.

There is also a proposed draft guidance on the risk assessment and review duties which will apply to services such as the following:

• Duty to carry out a suitable and sufficient risk assessment.
• Duty to keep a risk assessment up to date, including when Ofcom makes a significant change to a Risk Profile that relates to a service.
• Duty to carry out a further suitable and sufficient risk assessment before making any significant change to any aspect of a service’s design or operation.
• Duty to review compliance with the relevant duties regularly and as soon as reasonably practicable after making any significant change to any aspect of the design or operation of the service.

Ofcom are also proposing that as a minimum service providers conduct a compliance review and review their risk assessments at least once a year.

How services can identify illegal content

In their consultation, Ofcom seek views on the proposed development of an ‘Illegal Content Judgements Guidance’ (ICJG). The idea being that services can either follow the process set out in the ICJG to determine when there are reasonable grounds to infer that a piece of content is illegal, or they can draft their own terms and conditions which would mean that all content which would be illegal in the UK is prohibited on their service for UK users. With the latter option, services would make content moderation decisions based on their own terms and conditions.

Ofcom are also proposing to provide guidance to services to give them greater clarity about how they should assess whether content is illegal or not.

Ofcom’s approach to enforcement

Ofcom are expecting to use their information gathering powers given to them by the Act to issue statutory information notices. These will set out the purpose of the request and the reasons that they require the information.

They are also proposing to use their enforcement powers to conduct investigations into potential breaches and make decisions on whether a regulatory breach has taken place.

Ofcom are currently consulting on the draft Online Safety Enforcement Guidance which sets our how they will normally approach enforcement. Some duties came into effect at the time the Act passed whilst others will not be finalized until the corresponding Codes of Practice, guidance, or secondary legislation has been passed.

How Olliers can help?

Olliers are a specialist criminal and regulatory practice with significant experience in dealing with pre-charge matters involving a spectrum of online offences. Olliers are well placed to advise those who may find themselves under investigation or facing enforcement action under this new legislation.