Intellectual property: A new era for the internet

The introduction of the Online Safety Bill to the UK Parliament marks a milestone in increasing online safety in an industry that was previously dubbed “underregulated”. The bill proposes to place a whole host of new obligations on user-to-user service providers and search engines to detect, monitor, remove, and in some cases report harmful and illegal content, with a particular emphasis on reducing child sexual exploitation and abuse (“CSEA”) and terrorism content. This article considers the steps companies will be required to take to comply with their new obligations, and the repercussions they will likely face if they fail to do so.  

New obligations

User-to-user service providers and search engines with “links” to the UK will be under a new legislative duty to implement proportionate systems and processes to reduce the amount of illegal content on their website. This includes obligations to:

• proactively detect illegal content;
• prevent individuals from encountering
  the content;
• minimise the length of time the content is visible to users; and
• quickly take down such content as soon as the company becomes aware of it (whether the content is reported to the company by a moderator, user or otherwise).

The bill suggests companies adopt certain measures to comply with their new obligations, including revising their regulatory compliance and risk management arrangements, the design of their algorithms, their moderation capabilities, and functionalities to allow users to control the content they encounter, as well as strengthening and clarifying their website terms of use and internal staff policies and practices.

However, the new obligations do not end there. In addition to the above, companies will also be required to:

• implement new measures to address anonymous trolls online;
• ensure 18+ age verification checks for sites that host pornography;
• tackle fraudulent advertising on social media and search engines;
• address how they will deal with “legal but harmful” content and make this clear in their terms and conditions (note, it is anticipated that Parliament will release secondary legislation on this in due course);
• report all CSEA content to the National Crime Agency; and
• put in place additional protections if there is a likelihood that their website will be accessed by children.

What about non-compliance?

Ofcom will be appointed as the new independent regulator, responsible for monitoring compliance and taking action when companies fail to fulfil their duties.

Ofcom’s initial approach will be one of collaboration. It will work with companies to help explain what the new rules mean in practice and the steps that can be taken to stay compliant. It will also issue codes of practice to help guide companies in the right direction. However, Ofcom will also have a wide range of enforcement powers at its disposal, depending on the seriousness and persistence of the breach in question.

In the worst cases, Ofcom will be able to impose fines up to the higher of £18 million or 10% of global annual turnover, and apply to the court for business disruption measures (which will include the ability to block non-compliant services).

Finally, the bill also introduces criminal liability on senior managers of companies who fail to ensure their company is compliant, or who deliberately destroy or withhold information from Ofcom, with offenders facing up to two years in prison or a fine.

Final thoughts

Companies providing user-to-user and search services will need to grapple with their new duties and be ready to demonstrate compliance. Although the bill has not yet been passed, it is never too early for companies to start thinking about the changes they can make now to make their services as safe as possible for users. Companies will also be required to give thought to how they will balance their new obligations with protecting users’ existing rights, including freedom of speech.