The Online Safety Bill (the ‘Bill’) was recently debated in January of this year. The new Bill seeks to address illegal and harmful content on the Internet with the aim of making the UK the safest place to be online. While these new set of laws will protect children and adults online and are well intended, they are expected to significantly impact businesses operating in the UK’s online space. They may result in new obligations and costs for these companies. Businesses should take advice early, review processes and policies, and ensure employees and consultants are ready.

Tech platforms – children’s safety online

The Bill affects all tech companies that fall under its scope, including those that publish user-generated content (such as Facebook and TikTok) and search engines. These companies are required to protect minors from harmful content and activities, including child sexual abuse material.

Additionally, the companies must ensure that any content that children can access is age-appropriate, even if such content is legally compliant, such as material related to self-harm. This has come as a result of the timeframes it has taken some companies to react and take down harmful content and the lack of controls and restrictions in place. Business reputation is one thing, but now the law and Government will be assisting in this protection and enforcement from now on.

Tech companies will now be required to publish assessments of the risks their websites pose to children. As part of the Bill, platforms must conduct evaluations of the potential harm their services could cause to minors. They must also explain how they plan to address these risks in their terms of service. The communications regulator, Ofcom, will oversee this process to ensure compliance. We strongly suggest you start looking at your systems now and all associated processes so with advice, you can ensure the Bill and your platform align.

Businesses that do not follow the rules set out by the legislation can be fined up to £18 million or 10% of their worldwide income, whichever is greater. Furthermore, the Bill does not prescribe a limit of turnover for businesses. The Government has stated that the Bill will cover only 5% of all UK businesses. However, it is anticipated that a much higher percentage of retailers and eCommerce websites are expected to be impacted. Social media companies for which the Bill was initially created will also be affected.

Content which is legal but harmful

The Bill has removed the obligation for major tech companies such as Instagram and YouTube to protect adult users from harmful content that does not meet the threshold for criminal activity, also known as “legal but harmful” content. Instead, Ofcom will be responsible for enforcing tech companies’ terms of service. If a tech company states that it prohibits content that promotes eating disorders, for example, it will be required to follow through on that promise or face penalties.

According to the Government, users will have the right to challenge content removal or account bans. This will prevent companies from arbitrarily removing content or banning users and provide a fair process if they do. The changes will require extra work for tech firms, as they must now provide adults with the option to reduce the visibility of certain types of legal but potentially disturbing content. This includes abusive material or material that promotes hatred based on race, ethnicity, religion, disability, gender, gender reassignment, or sexual orientation.

As such, more robust terms with users and suppliers will be required. Online businesses should monitor user content on their site and ensure they can remove such content if necessary. Your GDPR and policies online need to be robust and workable to protect your business and the use of your platforms, and how you interact with others.

Take Action

The implementation of the Bill may have several unintended consequences, including:

1. Smaller companies may need to hire additional staff to monitor the content posted on their sites. This could incur significant additional costs and limit new entrants to the social media market. Sub-contractors are possible, but check that your contractual terms are robust, and you minimise liability.
2. Social media companies become overly zealous in removing content to avoid the risk of large fines. This could lead to a severe impact on freedom of speech. This will create public buzz, good and bad, so company reputation on how you move forward is key.
3. Tech firms could be forced to remove historic content that falls under the scope of the Bill. For some firms, it will present a major challenge and cost, given the vast amount of content generated on social media in the past 15 years. You need to ensure you can practically do this and that staff have been trained and advised accordingly in their process maps.
4. News and entertainment publications may decide to disable their online comments section to avoid fines, limiting freedom of expression.
5. The creation of an unprecedented and conflicting situation where content can be considered “illegal” online but legal in newspapers, magazines, or books.

If this Bill impacts you, seek advice now and audit your systems and processes. Make sure it is workable to monitor and remove content. Ensure your staff / sub-contractors have contractual terms and staff policies to protect you as a business. Make sure that they follow the new processes and are trained to understand them. If unsure, take advice and action early.

In the meantime, if you can’t wait, you can contact us directly for impartial advice by visiting our website https://www.acitylawfirm.com/ or emailing [email protected] 

Karen Holden is the Managing Director & Founder of A City Law Firm who practise both commercial law and litigation, having been admitted to the roll in 2005. If you require further advice or assistance, please do not hesitate to contact [email protected] 

A City Law Firm Limited is a leading entrepreneurial law firm in the city of London, with a dynamic and diverse team of lawyers. It was awarded most innovative law firm, London 2016 and Business Law firm 2017. They specialise in start-up business law, the tech industry, IP and investment.