The OSB is the UK’s draft legislation for regulating online content. In our December edition, we reported that the Online Safety Bill (“OSB”) was back on track. It’s been a busy start to 2023 for the OSB as it saw further amendments to the OSB proposed by Conservative peers, another government reshuffle, and the second reading of the OSB in the House of Lords. The UK Government is running out of time to deliver, and it is now under increasing pressure to prioritise the OSB so it can receive Royal Assent by April 2023. It’s looking unlikely that the OSB will pass into law by Summer 2023. In this article, we summarise the key updates and what lies ahead.
At the end of January 2023, nearly fifty Conservative MP’s supported back-bench proposals which lead to further amendments to the OSB. The rebellion wanted to see higher enforcement action for those who fail to protect children, in particular, from damaging content online. The new amendment introduces criminal liability sanctions of up to two years imprisonment for senior managers who fail to protect users online. In the OSB’s previous iteration, senior managers were criminally liable only if they failed to respond to information requests from Ofcom. This particular amendment came as welcome news to those who have been campaigning for criminal liability for failure to comply with the safety duties contained in the OSB. Following on from Molly Russell’s inquest, there has been immense public pressure to protect children from the risks posed online, and MPs across all parties now appear to be firm supporters of the OSB.
The OSB passed its third reading in the House of Commons on 17 January 2023 (without a vote). On 18 January 2023, the Department for Digital, Culture, Media & Sport (“DCMS”) released a policy paper, which provides an overview of the current policy changes and “outlines the rationale driving the changes made to the Online Safety Bill during House of Commons passage and provides an initial, qualitative assessment of where changes to costs are expected and whether these changes are likely to be increases or decreases from the accompanying final impact assessment.”
The amendments have dominated recent press headlines and we set out the recent updates below:
- A recent amendment to the OSB introduced higher powers for Ofcom (the regulator) to impose criminal sanctions on senior managers who fail to comply with information requests, who deliberately destroy or withhold information, and/or fail to protect children from damaging online content. The amendment provides for prison sentences of up to two years for senior managers.
- Following the findings of Molly Russell’s inquest that social media has “contributed to her death in more than a minimal way” the Government has been under pressure to protect children from the risks of online harms. In light of the inquest, there has been renewed pressure to advance the OSB and ensure the Bill is passed.
- Assisting or encouraging self-harm online has been made a criminal offence following the findings of Molly Russell’s inquest.
- Ofcom published a call for evidence on protecting children from content that is legal, but harmful to them.
- Ofcom has been given the power to fine digital platforms 10% of their global revenue if they fail to comply with a code prohibiting online misogyny with a clear focus on abuse faced by women and girls online.
- Stakeholders have criticised the OSB for treating smaller tech platforms in the same way as the larger tech platforms even though their resourcing will be limited.
- Various tech companies using encryption messaging such as WhatsApp and Signal have voiced their concerns and suggested that they would potentially stop operating in the UK and/or not abide by the OSB.
The OSB had its second reading in the House of Lords on Wednesday, 1 February 2023, with over 60 Peers speaking in a debate which lasted over 6 hours. The latest version of the OSB has the amendments introduced by the House of Commons. The DCMS has released a fact sheet which helpfully summarises the current status of the OSB and reflects the outcome of Parliamentary scrutiny.
A further shift in the Government may have implications for the progress of the OSB. As part of a cabinet reshuffle on 7 February 2023, a new department – the Department of Science Innovation and Technology (DSIT) was created. All data and digital related policy has been moved from the DCMS to the DSIT.
Impact to the Insurance Market
As set out in our previous article, the OSB does not expressly prohibit insurers offering cover for fines issued by Ofcom under the new regulatory regime. The OSB has potential fines for non-compliance as great as £18million or 10% of a company’s annual global turnover. Given the size of possible fines, the potential exposure for insurers is significant. Further, it may impact directors under Directors & Officer policies now that criminal sanctions could be imposed by the regulator. The recent amendment regarding Ofcom’s power to impose criminal sanctions for failing to protect children is a material change for the OSB. Previously, enforcement would have been dealt with by civil fines only. The current draft sets the bar high for personal criminal liability as it focuses on ‘deliberate’, rather than negligent, conduct of senior managers. Where an offence is committed with the ‘consent or connivance’ of a senior manager or other officer of the company, or is ‘attributable to their neglect’, the officer and the company, will be guilty of the offence. The risk to senior managers’ personal liability is imprisonment for up to two years. This will have significant implications for insurers under Director & Officer policies.
What happens next?
The OSB will continue to be debated. In terms of the timetable, the OSB is expected to receive Royal Assent in April 2023. However, when the provisions will come into force remains unclear. Once the OSB has received Royal Assent, the OSB will need secondary legislation to implement it, and it is understood that Ofcom will publish codes of practice. Should the OSB not reach Royal Assent in 2023, according to Parliamentary rules the legislation may be dropped in its entirety, however, given the delays due to changes in Government, it is looking likely that the law will pass in Summer 2023. We will keep you updated on the progress made of what is undoubtedly one of the most significant legislative initiatives affecting the digital technology sector over the past decade.
