With legislation passed, Ofcom now faces the considerable task of making the Government’s vision for a safer internet a reality
Controversial online harms regime enshrined in law
On 26 October 2023, the Online Safety Act received Royal Assent, the final stage in the UK legislative process. Now four years on from the Online Harms White Paper, defining and refining what it means to make the UK “the safest place in the world to be online” has been highly contentious and involved frequently shifting goalposts. Age verification requirements and monitoring of encrypted messaging for child sexual abuse material drew preemptive refusals and threats of withdrawal from the market from services like Wikipedia, WhatsApp and Signal. Meanwhile, civil society has bemoaned the scaled back effort made to address disinformation online. Perhaps most notable has been the shift away from regulating the “legal but harmful” content to the introduction of a “triple shield” framework aimed instead at user empowerment and effective enforcement of existing codes. The Act reflects a lengthy period of stakeholder consideration that ultimately captured a much broader range of criminal harms throughout the legislative process than originally envisaged.
Ofcom takes on regulating the internet
With Royal Assent of the Online Safety Act, Ofcom has now been established as the UK’s online safety regulator, subsequently outlining its approach to and timeline for implementing the new rules. On 9 November, the regulator will publish its draft codes of practice and guidance under the act, as well as analysis on the causes and impacts of harms in a three-phase process:
Duties regarding illegal harms, including proactive assessment of risk;
Duties regarding the protection of children, pornographic material and the protection of women and girls, including age assurance policies; and
Additional duties assigned to categorised services, including transparency reporting and user empowerment requirements.
Opportunity for participation via consultation is expected throughout the process of categorisation of platforms and creation of codes of practice. For now, Ofcom has set out its expectations for consumers as implementation gets underway with compliance anticipated for mid-2024.
A more targeted approach than the EU
Despite a healthy head start dating to April 2019, the Online Safety Act follows behind the more structurally focused and comprehensive approach of the EU’s Digital Services Act (DSA). While Ofcom will be tasked primarily with the classification and regulation of service providers by user base and risks of harm, the Very Large Online Platforms and Search Engines of the DSA regime are assigned duties that range beyond the prevention of harm, e.g. the protection of intellectual property. The Online Safety Act will bring a greater number of smaller platforms into the regulatory fold with the expectation of a far more granular and proactive approach to preventing and mitigating harm online. Settling on a narrower aim than the DSA, the UK will stick true to name in delving deeper into safety online and address structural concerns for the digital ecosystem in further legislation like the Digital Markets, Competition and Consumers Bill.
