What is the OSB and how does it affect me?
First published in May 2021, the implementation of the OSB has been long awaited. The bill has faced a series of delays but is currently at committee stage following a second reading in the House of Lords.
Whilst there have been a number of iterations of the legislation, fundamentally, the bill creates duties of care for companies within its scope, specifically those hosting user-generated content such as social media companies and search engines. In reality it is anticipated that a broad range of companies are likely to be caught by this regime, although the extent and nature of a company’s obligations will depend on a category allocation. Category 1 will be for the largest platforms with the widest reach, and these companies will face the most onerous requirements.
Duties on companies under the OSB include those relating to child safety, where a service is likely to be accessed by children. Specifically, the bill as currently drafted may require service providers caught by the child safety protections to:
- Protect children from harmful content and activity causing harm, and ensure any content that could be accessed by children, but is not illegal, is age appropriate.
- Implement age assurance measures.
- Outline in their terms of service any minimum age restrictions on the platform and how those restrictions will be applied consistently.
- Publish risk assessments of dangers posed to children.
Should a company fail to comply with these requirements, Ofcom – as the regulator of the OSB – will have the power to issue a fine of up to £18m or 10% of worldwide turnover and block service sites.
Ofcom’s call for evidence – second phase of children’s online safety regulation
Ofcom has previously consulted with companies on managing illegal content being accessed by children, but has now announced a second call for evidence, which will consider the protection of children from legal content which is harmful to them. Ofcom wants to hear from interested stakeholders and those with expertise in protecting children online. These responses will feed into a consultation set to be published in the autumn, and will include draft guidance and codes of practice to assist companies in complying with child safety duties.
Key questions that are likely to be addressed by this call for evidence will include:
- Types of child safety measures that could be applied by companies under the OSB;
- What child safety techniques and measures are most effective;
- How such safety measures operate in practice; and
- What the potential consequences of implementing these measures may be for service providers.
Companies engaged by these child safety duties currently face some uncertainty as to what will be required from them, and it is hoped that the consultation will clarify what some of these duties mean in practice. However, the call for evidence provides an opportunity to be involved at an early stage in shaping the development of Ofcom’s guidance and consultation on this issue, and submissions to the call for evidence can be made here until 21 March 2023. Bird & Bird’s Online Safety team is available to provide support to companies in the process of making submissions.
Please keep an eye out for other publications in our Online Safety Bill series coming soon on MediaWrites.