OFCOM To help facilitate the policing and
BY JAMES OXLEY Partner & Head of Corporate and Commercial
interpretation of the duties imposed by the new legislation OFCOM has been given new powers and functions to act as a regulator. OFCOM have already set out a road map for the phased introduction of codes and guidance starting with:- guidance on illegal arm duties which will address the most significant issues such as terrorism and fraud, plus measures to protect children from sexual exploitation and abuse; then
On 26 October 2023 the Online Safety Act received Royal Assent. The new law has been passed with the aim of dealing with the growth of on-line risks to both adults and children. Breaching the new law can lead to significant fines, and even prison sentences. The new act sets out, right at the start, that to achieve its purpose of making the internet safer for individuals it requires providers of services to manage the risk of harm to individuals from illegal content and activity, and content and activity that is harmful to children. Key duties imposed by the Online Safety Act The act imposes a range of duties on UK providers (and non-domestic providers of services to the UK) of search engines and user-to-user services (such as social media platforms) including:- prevent illegal and harmful content; protect against fraudulent advertising; protect content of democratic importance; and protect content of journalistic content and news publishers. Whilst the act states that privacy rights and freedom of expression must be protected, it is easy to see that the balancing act between the various rights will be a hard line to tread. Whilst the big technology companies are clearly being targeted, smaller platforms and on-line forums where users can interact, and share information are also within the act’s
guidance on child safety, pornography, and protection for women and girls; then
duties on regulated services which are those that meet criteria as set out by the Government in secondary legislation.
OFCOM’s new powers are not dissimilar to those given to the
Information Commissioner’s Office in respect of data protection matters. OFCOM will have the power to fine those who breach the new law up to the greater of £18m or 10% of global turnover. They will also have powers to make information requests from service providers and to prosecute senior managers for breaches. OFCOM will fund their on-line safety regime through fees collected from the providers of regulated services whose revenue meets certain thresholds. Summary The intentions of the Online Safety Act are well overdue and well-intended, but it remains to be seen how well the act, OFCOM and ultimately the Courts, handle the balance of freedom versus restriction.
james.oxley@haroldbenjamin.com
scope and both will need to educate themselves on the duties it imposes.
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