Online safety – dawn of a new era

Yesterday the Online Safety Bill received assent in the House of Lords, meaning it is now ready to become law. It is anticipated that the Bill will receive Royal Assent in the course of October 2023. So it is that the UK stands on the brink of a new era in internet regulation, one which is intended fundamentally to improve the health and wellbeing of the nation by making the internet a safer, less hazardous environment for all.

And how, you may well ask, is this improvement to be achieved? Well, in the most basic terms, the Online Safety Bill (soon to be the Online Safety Act) seeks to make the internet a safer place by: (a) converting those online intermediaries who host and index online content – including most obviously social media providers and online search engines – into the digital caretakers of the online world, making them subject to a wide array of duties of care with respect to the content they respectively host or index and, further, (b) charging Ofcom with responsibility for ensuring that online intermediaries are discharging these duties of care in practice.

Two immediate points to note about this regime.

  • First, it marks a significant departure from the regime that currently governs the operations of online intermediaries, whereby (a) their liability is essentially a reactive ‘notice and take down’ liability (i.e. they become liable only when they are placed on notice that they are hosting or indexing unlawful content and they fail to act expeditiously to remove that content) and (b) they cannot be subject to any general duties to monitor the content they host/index (these are the essential results at which the E-Commerce Directive are aimed, and note that the GDPR has not generally been understood as requiring online intermediaries to proactively remove content which may be unlawful: see further the right to be forgotten regime, which is widely taken to function in respect of online intermediaries as a type of ‘notice and take down’ regime). By way of contrast, the duties imposed by the Bill/Act require online intermediaries proactively to put in place a wide array of systems and processes aimed at limiting the chances that harmful content will be hosted/indexed.
  • Second, whilst the aims of the legislation are no doubt laudable, a major question remains as to whether this regime may ultimately do more harm than good:
    • There can be no question but that the regime aims to make the internet a safer place. However, there is a serious question as to whether this may come at the price of rendering the internet a less vibrant, dynamic environment for all, tilting the balance too far in favour of a curtailment of free speech, and unduly damaging the fabric of our society as a result (notwithstanding the provisions in the Bill which aim to ensure the protection of free expression).
    • On the flip-side, there are abiding questions as to whether this regime will make an impact in practice. The scale of the tasks imposed on Ofcom through this legislation are verging on the Augean. Even if those tasks are completed effectively and timeously, it remains to be seen whether the regime will fundamentally make the internet a safer place, or whether it will instead merely tend to trap the technology sector in a regulatory thicket without ushering in a positive sea-change in the online environment.

No doubt, we will all be debating these issues for some time to come. However, two matters which you may wish to note. First, 11KBW’s Jamie Susskind and I will be hosting an in-person conference on the Bill/Act, to take place in the coming weeks. Due to restrictions on numbers, this will be an invitation only event. However, needless to say, but Chambers will of course be looking to host other substantial events on the Act in the foreseeable future. Second, Jamie and I will be editing a book on the Act, co-authored by our colleagues at 11KBW, which is likely to be published by Sweet and Maxell early in 2024. Details to follow in due course.

Anya Proops KC