In an increasingly digital world, the importance of online safety cannot be overstated. As the digital landscape continues to evolve, so too must the legal framework that governs it. The Online Safety Act 2023, a ground-breaking piece of legislation, is set to redefine the way we interact with the internet. In this article, we will explore the key aspects of this Act and how it affects individuals, businesses, and the legal landscape.
Understanding the Online Safety Act 2023
The Online Safety Act 2023 is a landmark piece of legislation aimed at ensuring the safety and security of users in the online realm. It represents a significant step forward in addressing the various challenges and risks associated with online activities, including social media, websites, and digital communication platforms. The Act introduces a comprehensive framework to tackle issues such as cyberbullying, harmful content, misinformation, and other online threats.
Key Provisions of the Online Safety Act 2023
- Duty of Care: The Act imposes a duty of care on online service providers, making them responsible for the safety and well-being of their users. This means that platforms are legally obligated to take reasonable steps to prevent and address online harm, including abusive content and harassment.
- Reporting Mechanisms: The Act requires online platforms to establish user-friendly mechanisms for reporting harmful content and to respond to such reports promptly. This empowers users to take an active role in ensuring their own safety online.
- Regulating Online Harms: The Act outlines specific categories of harmful content, including hate speech, incitement to violence, and sexually explicit material. Platforms are expected to proactively identify and remove such content to protect their users.
- Online Safety Regulator: To enforce the Act, online safety is formally brought within the remit of Ofcom. This regulator has the authority to investigate and issue penalties to non-compliant platforms, ensuring accountability in the digital realm.
Implications for Individuals
Individuals can expect a safer online environment with increased protections against harmful content and harassment. The Act encourages responsible online behaviour and empowers users to report issues they encounter. If you are a victim of online abuse, the Act provides you with legal recourse to seek redress and hold online platforms accountable. On the other hand, new communications offences are introduced to address modern individual criminal behaviours such as:
- Spreading false information with intent to cause harm (s.179);
- Sending flashing images where it is reasonably foreseeable that a person with epilepsy will view them and with the intent to cause harm (s.183);
- Sending photographs or films of genitals either with intent to cause alarm, distress or humiliation or for sexual gratification (commonly called ‘cyber-flashing’ or ‘dick picks’) (s.187, inserting a new offence in the Sexual Offences Act 2003).
It is likely that there will be some cross-over with these new offences and existing communications offences (e.g. s.1 Malicious Communications Act 1988 or s.127 Communications Act 2003), and the prosecution will face similar challenges in proving these offences. Likely defences will include requirement to prove who is responsible for sending the communication, how it was sent, to who it is was sent, and whether the content of the communication is correctly defined as ‘false information’, ‘flashing images’ or ‘images of genitals’. Furthermore, for each new offence it is for the prosecution to prove criminal intent; to cause harm for s.179 and s.183 or to cause alarm, distress or humiliation for s.187. Intent may be inferred from a defendant’s actions once established, but it is rarely straightforward and this can be expected be a live issue at trial in most cases brought under these new sections.
Implications for Businesses
For businesses, compliance with the Online Safety Act is of paramount importance. Online service providers, including social media platforms, forums, and websites, must invest in content moderation, reporting mechanisms, and other safety measures. Non-compliance can result in hefty fines (up to 10% of global revenue for tech companies, or £18m – whichever is bigger) and damage to a company’s reputation. Directors could also potentially face prison time as punishment. Solicitors and legal professionals will play a crucial role in assisting businesses with understanding and adhering to the Act’s requirements.
Platforms will need to show they are committed to removing illegal content including:
- child sexual abuse
- controlling or coercive behaviour
- extreme sexual violence
- illegal immigration and people smuggling
- promoting or facilitating suicide
- promoting self-harm
- animal cruelty
- selling illegal drugs or weapons
In anticipation of the Bill coming into force, many social media companies have already started making changes. By way of example from industry leaders, TikTok has implemented stronger age verification on their platforms, while Snapchat has started removing the accounts of underage users. On the other hand, end-to-end encryption services such as WhatsApp, Signal and Protonmail have pushed back and threatened to leave the UK market before compromising message security.
Digital businesses should be under no illusion that this is limited to Big Tech and government figures have suggested more than 20,000 small businesses will also be affected.
The Role of Solicitors in Navigating the Online Safety Act 2023
Solicitors and legal professionals will be pivotal in helping businesses and individuals navigate the complexities of the Online Safety Act 2023. We will provide expert guidance on compliance, ensuring that their clients meet their legal obligations and avoid potential legal consequences. Solicitors can also assist victims of online abuse in pursuing legal remedies and holding perpetrators accountable.
The Online Safety Act 2023 represents a significant step forward in creating a safer online environment for individuals and businesses. With its duty of care provisions, regulated online harm categories, and the crystallisation of an independent regulator, the Act seeks to strike a balance between online freedom and safety. Solicitors and legal professionals will be instrumental in guiding clients through the legal intricacies of the Act and ensuring a safer and more responsible digital landscape for all. If you have questions or concerns regarding the Online Safety Act 2023, do not hesitate to reach out to our experienced legal team for expert advice and assistance.