Peter Kyle, the Secretary of State for the Department for Science, Innovation and Technology, told the BBC’s Laura Kuenssberg recently that he was going to “close loopholes” in the Online Safety Act and went on to talk about the importance of building in safety into the online world in order to ensure the opportunities of tech can be realised. He said that as far as he was aware, the tech sector was the “only sector .. that can release products in to society without proving they’re safe before release”; he wanted to take steps “to try and make sure safety is there at the start, not picking up the pieces afterwards” promising that increasingly the Government would be working with the US and others “to make sure safety is proven before the release of products”.

Ofcom’s protection of children consultation closed on Wednesday 17 July. In this blog post, we summarise our response to their proposals and reiterate the recommendation we made in response to their previous illegal harms consultation to deliver a more outcome-focused approach to risk mitigation in their draft codes of practice. Our full response is available here. Background Ofcom’s protection of children consultation is the second major plank of its implementation of the regulatory regime that it will be enforcing under the Online Safety Act 2023. The first -the illegal harms consultation - closed in February 2024 and Ofcom’s response has not yet been published. The protection of children’s proposals relate to the Online Safety Act’s child safety duties (section 12) and risk assessment (section 11); Ofcom is consulting on two draft codes of practice (for user-to-user services and for search) along with draft guidance for risk assessment and for children’s access assessments.

With the UK General Election just three weeks away, the three main parties have now published their manifestos and we’ve produced a comparison table on how their pledges on online safety and wider policy and regulatory initiatives stack up. Both Labour and the Conservatives are promising further measures to build on the Online Safety Act but neither have gone down the route of promising bans on smartphone use by children; the Conservatives have, however, promised to put their guidance on banning mobile phones in schools on a statutory footing and to provide funding to schools to implement it and will consult on further measures to protect children online. Labour have committed to bringing back the provision to allow coroners to access information held by tech companies after a child’s death - which had been included in the now-scrapped Data Protection and Digital Information Bill. The Liberal Democrats propose setting up a new independent advocacy body for children and a new Online Crime Agency to “tackle illegal content and activity online, such as personal fraud, revenge porn and threats and incitement to violence on social media”.

A PDF version of this piece is available to download at the bottom of the page. Issue Ofcom has recently published its advice to the Secretary of State on thresholds for categorisation, along with a call for evidence to inform the implementation of the related duties. The categorisation of services under the Online Safety Act determines which of the regulated user-to-user or search services will be subject to additional duties. These include user empowerment duties and additional responsibilities relating to terms of service - duties which are the only remaining routes to providing additional safety protections for adults since the Government’s decision to remove the wider adult safety provisions from the Online Safety Bill in autumn 2022.

The Online Safety Act Network has today (20 February) released a statement co-signed by 22 civil society organisations, campaigners and experts setting out a number of concerns about the proposals in Ofcom’s first consultation on the new Online Safety Act regime, which closes this Friday. The statement, which has the backing of prominent charities spanning children’s rights (Barnardo’s, 5 Rights Foundation), suicide prevention (Samaritans, Molly Rose Foundation) and anti-racism and abuse campaigners (Antisemitism Policy Trust, Glitch, Kick It Out, End Violence Against Women Coalition), details concerns about the approach Ofcom has chosen to take in its first draft codes of practice - on illegal harms - and the impact these choices will have on user safety. 

Issue There are a number of concerns in relation to the definition of illegal content and the Illegal Content Judgements Guidance (Annex 10) proposed by Ofcom in its consultation on the Online Safety Act Illegal Harms duties which in effect define the scope of the regime relating to illegal content: how Ofcom’s approach fits with “safety by design” principles; the degree to which the Guidance is focussing on identification of criminal conduct rather than content associated with a criminal offence; standards of proof should be civil not criminal – the regime is regulatory; impact on protection of human rights. Of course, Ofcom is constrained by the provisions of the Act, but as we set out below, those provisions are open to a number of interpretations. Ofcom’s chosen interpretation and the proposals that flow from it in the draft Guidance will lead to a restrictive focus on takedown of content rather than a more systemic approach.

(A PDF version of this analysis piece is available to download at the end of the page.) Issue The Online Safety Act directs Ofcom to consider freedom of expression (Article 10 ECHR) and privacy (Article 8 ECHR), but these are not the only relevant rights – as indeed Ofcom notes. All the rights protected by the European Convention on Human Rights should be considered when considering the impact of the regime – or the lack of it. So, as well as the qualified rights of freedom of expression, the right to private life and rights noted by Ofcom – e.g. the right to association – we should consider other rights including the unqualified rights – the right to life, freedom from torture and inhuman and degrading treatment as well as the prohibition on slavery and forced labour (e.g people trafficking). Note also that rights can include positive obligations as well as an obligation to refrain from action; a public body can infringe human rights by failing to protect as well as by interfering itself in an individual’s rights. 

Alongside the hefty consultations launched since the Online Safety Act achieved Royal Assent, Ofcom have also recently been asking for views on proposed principles for “media literacy by design”. Under the Communications Act 2003, the regulator has an ongoing duty to promote media literacy. This consultation sets out some media literacy design principles to guide the interventions that online platforms might make to “help internet users engage with online services critically, safely and effectively”. These are grouped under three themes, focusing on how services can: 

Recent discussions with members of the OSA Network have focused on the approach to risk management being proposed by Ofcom in its consultation on the Online Safety Act illegal harms duties. Volume 3 of the suite of Ofcom documents covers this topic, including some initial proposals and evidence on governance and accountability. Governance structures, along with robust risk assessment processes, are fundamental to influencing product design choices with a view to reducing the risk of harm. So Ofcom’s proposals here are crucial to the overall effectiveness of the Online Safety Act regime.

On 9 November, Ofcom published its illegal harms consultation - 1700 pages of it - the first of three main phases of consultations to get the Online Safety Act regime up and running. Inevitably, the length of the consultation has provoked much commentary and some angst amongst those with an interest in this agenda. It is - undoubtedly - long. It will require time-consuming and detailed analysis by those who wish to respond to it. Nearly two weeks on, anyone with a hot take on what it means and whether it works is most likely chancing their arm based on a cursory speed-read. As some commentators have suggested (for example, here and here), the impact on smaller and less experienced stakeholders - who will need to engage as much as the big platforms do - could well be negative.