The Online Safety Act 2023 (the Act) is now in force and its provisions will gradually be rolled out over the next couple of years. The Act radically changes the responsibilities that certain online service providers have in respect of the content hosted on their website or other relevant online service.
If you or your business hosts or facilitates user-to-user content, you may be caught by the requirements of the Act. Below, we set out some of the key areas service providers will need to be aware of.
The Act defines a user-to-user service as an internet service where content is generated by a user of the service and may be encountered by another user or users of the service. This may, for example, include social media applications, chat sites, instant messaging sites or online gaming services.
There are separate provisions for service providers providing, or incorporating, online search services.
The Duty of Care:
For user-to-user services, the Act imposes a duty of care on the service provider to conduct risk assessments to identify what, if any, risk there is of illegal content being hosted on the services that they provide, as well as to take certain steps to mitigate these risks (for example, improvements to the technical architecture of the service).
The duty to conduct a risk assessment is on-going, and service providers will want to ensure that they follow OFCOM’s guidance and codes of practice issued from time to time, especially given the fact that OFCOM will have the powers to issue fines and, in some cases, seek prosecutions for failure to comply with certain provisions of the Act.
Terms of service:
Service providers will also be required to ensure that all procedures are wrapped-up in bespoke terms of service. These terms will not only have to detail how content is moderated through the service but will also need to contain provisions for balancing users’ rights to expression (including appeals procedures).
Given these new requirements for terms of service, service providers will need to consider updates to existing terms of service, or the creation of wholly new terms of service to deal with the duty of care imposed by the Act.
At Gaby Hardwicke, our specialist commercial lawyers are happy to review existing terms of service and advise on what further steps may be required to ensure compliance with the Act.
Staff policies and practices:
Service providers will also need to consider their own staff members in the fulfilment of duties under the Act. The priority will be the preparation of new policies, or amendment of those existing which seek to both educate members of staff as well as manage those that have any level of influence over the design or operation of a service. In particular, those involved in carrying out risk assessments as required under the Act should be tasked with ensuring in the first instance that appropriate systems are in place. If so, then these must be continuously monitored to prevent illegal and harmful content on an ongoing basis.
Our specialist employment lawyers are on-hand to review and advise on service provider’s staff policies and procedures relating to the Act.
If you require advice on this subject or would like us to review or draft your terms of service or staff policies, please contact: