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Future Unclear For Online Safety Bill In Fall Out From Boris Johnson’s Resignation – Government Contracts, Procurement & PPP



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We understand today that the progress of the
long-awaited UK Online Safety Bill is expected to be delayed,
following Boris Johnson’s resignation as prime minister.

The draft Bill was due to reach the final stages of its path
through the House of Commons (Report Stage and Third Reading) next
week before summer recess on 21 July. However, the Bill is now
expected to be re-arranged in the parliamentary schedule to Autumn
instead – which will mean it is after a new prime minister
has been appointed.

Comprehensive package with international reach

The Bill sets out a comprehensive package seeking to combat both
illegal and “lawful but harmful” practices online, whilst
also “ushering a new era of accountability and
protections for [freedom of expression and] democratic
debate
. Enforced by Ofcom and backed by fines of up
to £18 million or 10% of annual worldwide revenue for
non-compliance and potential criminal liability of corporate
officers for certain breaches, the Bill provides a far more robust
statutory regime than the current self-regulatory one.

The new rules apply to both “user-to-user” services
(that allow users to post their content online or interact with
each other) and search engines, that have “links with the
UK” (whether based in the UK or not). This includes technology
companies and digital platforms, among others, that provide
services to a significant number of users in the UK, target the UK
market or can be used in the UK by individuals.

Will the Bill continue totake the same form?

Whilst originally set out in the Conservative’s Manifesto
2019 and a priority for Boris Johnson’s government, the Bill
has been subject to a series of delays and criticism –
particularly around whether it strikes the balance between
protecting online users whilst also safeguarding freedom of speech
/ democratic debate online or whether it gives rise to potential
constraints on innovation and investment for those in scope. The
scope of “lawful but harmful” content under the Bill, has
also been subject to much debate in the House of Commons and
amongst industry stakeholders.

With a new prime minister (and likely a new Secretary of State
for Digital, Culture, Media and Sport) taking the helm in due
course, it is unclear how much of the Bill will progress in its
current form – with at least one of the current candidates
for prime minister openly objecting to aspects of the Bill.

Delays to the roadmap ahead

Last week Ofcom set out its “roadmap to regulation” for putting
online safety legislation into practice. To assist regulated
services, the roadmap includes a likely timeline for implementing
the Bill (including related consultations around guidance and codes
of practice). Whilst Ofcom anticipates the Bill receiving Royal
Assent by early 2023, this now appears optimistic and the timeline
is likely to evolve further.

Much of the detail of the Bill (including the extent of
applicable duties relevant to regulated service providers) will be
set out in secondary legislation and codes of practice prepared by
Ofcom that have not yet been published. The true impact and of the
new legislation and how to comply with it is therefore still not
clear at this stage and is now likely to be delayed further. It
will also be key for industry stakeholders in scope to input into
related consultations to ensure the regime is workable in
practice.

The race to regulate: how to minimise the compliance
burden?

In parallel with the Bill, the proposed European Digital Services Act (DSA) was first
published by the European Commission in December 2020. It 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, the EU proposals only explicitly cover illegal content
(rather than the UK’s attempt to regulate harmful content as
well). In both cases, 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.

For regulated organisations operating in / targeting both a UK
and EU footprint, it is worth considering how your compliance
programme can be carried out in the most efficient way –
given the potential overlap between the UK and EU legislative
packages as well as the likely disparity in timing of the two
packages. Consider whether operationally the most practical
solution requires you to apply a consistent “gold
standard” across both jurisdictions in respect of at least
some of the regulatory obligations.

Watch this space.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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