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The UK Government is one of the first individual nations to put forward its own legislative proposals to 'regulate the internet' with the long awaited Online Safety Bill (the “Bill”). The amount of time it has taken the Government to publish the Bill reflects the unenviable challenges facing legislators around the world, of striking a balance between protecting online users and safeguarding freedom of speech and democratic debate online whilst also supporting innovation and the digital economy.
Harmful and illegal content is seen as too readily available online. Voluntary industry action through existing self-regulation has proven to be unsuccessful in combating this issue and has struggled to keep pace with the changing online environment.
The Bill includes a comprehensive package of tough new measures which seeks to combat illegal and harmful practices online, and applies to all regulated services that have “links with the UK” (whether they are based in the UK or not). This includes tech companies and digital platforms, among others, which provide services that have a significant number of users in the UK, target the UK market or can be used in the UK by individuals. It remains to be seen how the Bill will be monitored and enforced in respect of regulated service providers located overseas.
Publication of the Bill follows hot on the heels of the proposed European Digital Services Act (“DSA”) published by the European Commission in December 2020, which proposes new rules to increase the responsibilities of providers of online intermediary services and reinforce oversight over online platforms’ content policies. There are some key differences between the EU and UK approaches. For example, in contrast to the UK's attempt to regulate harmful as well as illegal content, the EU's proposals only explicitly cover illegal content. In both cases, however, there are likely to be 'grey areas' that will test the limits of the legislation and cause difficulties for service providers trying to interpret their obligations.
The Bill provides Ofcom (the UK's communications regulator) with a suite of new enforcement powers in relation to the distribution of illegal and harmful content, including:
The Government has also indicated that it may (in the future) give Ofcom new powers to take criminal action against named senior managers of service providers if, for example, they fail to comply with enforcement action.
The Bill does not just apply to tech giants and social media sites. It applies to all providers of internet services that allow users to share user-generated content (user-to-user) and providers of search engines (search services). There are some exemptions, including for “limited functionality services”, which only allow users to post comments or reviews on content which is published by the service provider, or use like/dislike buttons, engage in voting or rate such content.
It is too early to say when exactly the Bill will come into force and the true impact of the new legislation is not clear at this early stage. It remains to be seen whether the finalised framework will strike an appropriate balance between protecting online users and safeguarding freedom of speech and democratic debate online, or will give rise to potential constraints on innovation and investment for those within its scope.
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