The Department for Digital, Culture, Media and Sport (DCMS) has now introduced the Online Safety Bill to the House of Commons. This follows the publication of a Draft Online Safety Bill last year, which has been amended following consultation with parliamentarians.
The Bill aims to protect the public from harms which have arisen over the enormous growth of the internet in the last three decades. Under the Bill, in-scope services – primarily social media sites, search engines and other major web service providers – will need to:
The Bill will provide Ofcom with robust new enforcement powers when platforms do not comply with the Bill, including the imposition of fines, requiring improvements to services and pursuing disruption measures such as blocking uncompliant sites.
Chapter 5 of the Bill (pp. 33-35) focuses on ‘duties about fraudulent advertising’. This contains a number of requirements for internet companies to protect web users to online fraud, primarily through the removal of content posted by fraudsters and scammers.
Online platforms must now identify and remove fraudulent content. This was not in the original Draft Bill, but was recommended by MPs on the Bill Committee and was lobbied for by Keoghs. The Government confirmed this in early March 2022.
The Bill also creates provisions for Ofcom to issue guidance to Category 1 and 2 services to comply with the new regulations in Chapter 6 (pp. 35-45).
In the below, note that Category 1 services will cover social media companies. Category 2 services will cover search engines. Key passages include:
34 Duties about fraudulent advertising: Category 1 services
1) A provider of a Category 1 service must operate the service using proportionate systems and processes designed to:
a) Prevent individuals from encountering content consisting of fraudulent advertisements by means of the service;
b) Minimise the length of time for which any such content is present;
c) Where the provider is alerted by a person to the presence of such content, or becomes aware of it in any other way, swiftly take down such content.
2) A provider of a Category 1 service must include clear and accessible provisions in the terms of service giving information about any proactive technology used by the service for the purpose of compliance with the duty set out in subsection (1) (including the kind of technology, when it is used, and how it works).
35 Duties about fraudulent advertising: Category 2 services
1) A provider of a Category 2A service must operate the service using proportionate systems and processes designed to minimise the risk of individuals encountering content consisting of fraudulent advertisements in or via search results of the service.
2) A provider of a Category 2A service must include clear and accessible provisions in a publicly available statement giving information about any proactive technology used by the service for the purpose of compliance with the duty set out in subsection (1) (including the kind of technology, when it is used, and how it works).
3) The reference to encountering fraudulent advertisements “in or via search results” of a search service—
a) is a reference to encountering fraudulent advertisements—
i) in search results of the service, or
ii) as a result of interacting with a paid-for advertisement in search results of the service (for example, by clicking on it);
b) does not include a reference to encountering fraudulent advertisements as a result of any subsequent interactions with an internet service other than the search service.
37 Code of practice about duties
4) OFCOM must prepare and issue a code of practice for providers of Category 1 services and providers of Category 2A services describing measures recommended for the purpose of compliance with the duties set out in Chapter 5 (fraudulent advertising).
5) Where a code of practice under this section is in force, OFCOM may—
a) Prepare a draft of amendments of the code of practice;
b) prepare a draft of a code of practice under subsection (1), (2), (3) or (4) as a replacement for a code of practice previously issued under the subsection in question;
c) withdraw the code of practice.
The Bill has now been introduced to the House of Commons through a First Reading.
The Government is aiming for its Second Reading to take place before the House rises for recess on 31 March 2022. The Second Reading will be the first major parliamentary ‘event’ where MPs are able to debate the content of a Bill, before voting on whether it should reach the next legislative stage (see diagram below).
The Bill will not have parliamentary time to pass both the House of Commons and the House of Lords before the end of the 2021/22 parliamentary session next month, so will receive a carry-over motion, allowing it to progress in the 2022/23 session.
Given the broad scope of the Bill we estimate that it is unlikely to pass the House of Commons until just before summer recess (21 July). It will then likely go through its House of Lords stages during the autumn, with passage around Christmas and New Year.
The Online Safety Bill has been initiated in the House of Commons. It is currently between its First and Second Reading.
We will continue to keep clients up to date with any further developments.
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