Royal Assent received for the Online Safety Act 2023: What happens next?
In our August update we discussed the latest amendments to the Online Safety Bill, which recently received Royal Assent on 26 October 2023 - but what does this mean in practice?
The Online Safety Act (OSA) was introduced with the aim to protect children and tackle illegal online content, particularly in relation to social media, messaging, and online advertising services. The substantive provisions that will specifically address these issues are not yet in force and will be brought into force by secondary legislation.
Why is there going to be secondary legislation?
Currently, the live provisions of the OSA include mainly the definitions used within the Act and the provision that appoints Ofcom as the safety regulator. The Act also provides the basis on which Ofcom can draw up the guidance and codes of practice to accompany the Act.
Ofcom and the Secretary of State are due to publish several sets of guidance and codes of practice, after which the Secretary of State will then introduce secondary legislation making the Act fully operational.
Ofcom has set out its three-phase plan for its guidance to put the OSA into practice:
Phase one – Illegal harms duties
Draft codes and guidance were published for consultation on 9 November 2023, and Ofcom plans to publish a final statement on its final decisions in Autumn 2024.
Within the draft guidance, Ofcom set out their intended proposals for consultation including:
- The measures to be taken by providers of user-to-user services
- The measures to be taken by providers of search engine services
- Guidance for risk assessment and review duties applicable to all user-to-user and search engine services
- Guidance for record-keeping duties applicable to all user-to-user and search engine services
The measures proposed by Ofcom are recommended based on the size of the service and how risky it is.
The 15 kinds of priority illegal harms set out in the Risk Assessment Guidance are:
- Terrorism offences
- Child Sexual Exploitation and Abuse (including Grooming and Child Sexual Abuse)
- Encouraging or assisting suicide (or attempted suicide) or self-harm
- Hate offences
- Harassment
- Stalking, threats and abuse
- Controlling or coercive behaviour
- Drugs and psychoactive substances offences
- Firearms and other weapons offences
- Unlawful immigration and human trafficking
- Sexual exploitation of adults
- Extreme pornography offences
- Intimate Image Abuse
- Proceeds of crime offence
- Fraud and financial services offences
- and the Foreign Interference Defence
Ofcom includes a useful table in the summary of their proposals, which sets out the measures proposed depending on the size and level of risk of the service here.
Phase two – Child safety, pornography, and protection of women and girls
Ofcom will consult on draft guidance on age assurance relating to pornography in December 2023 and child safety duties in spring 2023, and it expects to publish draft guidance on protecting women and girls in spring 2025.
Phase three – Duties on categorised services
Ofcom will publish advice and draft guidance by Spring 2024. There will be certain guidance applicable to services that the Act and the secondary legislation capture.
What does the OSA do?
- It regulates online services targeting UK consumers, even if the service is not based in the UK
- To prevent the creation of illegal content and prevent illegal activity online, it imposes a duty of care on services that host user-generated content, facilitate online interaction between users (e.g. social media platforms), and search engines
- It imposes a duty to protect against fraudulent advertising
- It protects information of democratic importance and journalistic content
- It rescinds the existing legislation on “video-sharing platforms”, which will now be regulated by the OSA
- It requires 18 + age verification for all websites that publish or host pornography
- It creates a number of offences for companies and senior executives who fail in their obligations to provide information to Ofcom
- It creates new communications offences
The secondary legislation to follow will bring these changes into force and will make for the most powerful child protection laws in a generation, as well as ensure the better protection of adult mental health and empower adults to take control of their online lives.
What’s next?
The Ofcom guidance to come in the upcoming months (and into next year) will provide us with further clarity on the specific obligations imposed on online service providers. Once published, secondary legislation will follow to make the OSA fully operational.
In the meantime, there is guidance available to help providers protect users from online harms, available here.
If you have any queries about anything in this article, please get in touch with Alex Craig on [email protected] or 0191 211 7911.