In July 2022, OFCOM published a roadmap setting out plans for its implementation of the Online Safety Bill (“OSB”) and its proposed code of practice on illegal content. OFCOM has recently updated these preparations now that the OSB is at the final stages of the parliamentary process.
As we discussed in our recent article (here), there are still many decisions to be made on the application of the OSB. OFCOM expected Royal Assent to occur in early 2023, however the OSB has only just received assent in the House of Lords. With this slippage, OFCOM has had to alter its plans. Below, we cover the phased approach and set up of the Online Safety Group.
OFCOM still intends to use a three-phase approach to publishing its guidance. We have outlined these phases below:
Phase One: Illegal Harms Duties
OFCOM now expects to publish its draft codes of practice for this phase shortly after the OSB passing into law, rather than within 100 days. These draft codes will set out the measures that regulated services can take to mitigate the risk of illegal harm. Businesses will need to be aware of these codes in order to ensure they are able to comply with the requirements.
The codes will be published among the following content:
- a register of risks relating to illegal content, and risk profiles of service characteristics that our assessment has found to be associated with heightened risk of harm;
- draft guidance to services on how to conduct their own risk assessments and on how services can identify illegal content;
- draft guidance on record keeping; and
- OFCOM’s draft enforcement guidelines.
Phase Two: Child Safety Duties and Pornography
Draft guidance on age assurance is expected to be published in late 2023. However, draft codes in relation to the protection of children will not be published until 6 months after commencement.
OFCOM has also confirmed an intention to consult on:
- a register of risks and risk profiles relating to harms to children; and
- draft risk assessment guidance focusing on children’s harms.
Phase Three: Transparency, User Empowerment and Other Duties on Categorised Platforms
The OSB legislates for regulated services which are designated into Category 1, 2A or 2B services if they meet certain thresholds set out in secondary legislation. OFCOM must produce a register of these categorised services. In line with this, OFCOM carried out a call for evidence from the 11th of July 2023 to the 12th of September 2023 focusing on user numbers, functionalities and how these are assessed by businesses.
The requirements that will fall on these regulated services include:
- producing transparency reports;
- providing user empowerment tools;
- operating in line with terms of service;
- protecting certain types of journalistic content; and
- preventing fraudulent advertising.
However, the substance of these duties is also subject to consultation post commencement, alongside consultation on the transparency requirements.
Online Safety Group
OFCOM launched a new Online Safety Group (OSG) on 1 April 2023, with Gill Whitehead (a former Google and Channel 4 executive) appointed as Group Director. The OSG intends to bring together the following teams:
- The Policy Development Team is made up of policy experts in online harms and mitigations. They are leading the development, consultation, and refining of the policy positions which establish the steps that services should take to make users safe online.
- The Strategy Delivery Team ensures that the online safety work has a clear strategic focus and the cross-cutting operational coordination required to deliver against the OSB.
- The new Supervision Team will lead OFCOM’s engagement with online services, looking to drive improvements in how the most impactful services protect their users, as well as ensuring smaller services understand and can comply with the new regulations.
- The Technology Policy and Trust and Safety Technology Teams are made up of subject matter experts who provide OFCOM with the evidence and understanding of how new and emerging technologies impact online safety.
The OSG is also responsible for OFCOM’s regulation of video-sharing platforms (VSPs) which are likely to be affected by the draft Media Bill (see out article on this here).
The OSB received assent in the House of Lords on the 20th of September and Royal Assent will likely occur in October. Until the publication of the many draft codes of conduct expected from OFCOM, there will remain uncertainty regarding the true scope of the requirements businesses need to comply with.