The rubber hits the road: Ofcom launch their first consultations on the OSA 2023

Earlier this year, Dame Melanie Dawes, the CEO of Ofcom, told a Parliamentary Committee that a big moment for the UK’s regulation of online platforms would be when Ofcom first published its consultations on the Online Safety Act. This would be when the “rubber would hit the road” and “industry will see for the first time what we expect as a regulator” of how companies in scope should assess and mitigate the risk of illegal content. According to Dame Melanie, this would also be when conversations with industry would get “more serious and more real”.

Today, that moment arrived: with Ofcom publishing its first major consultation on how it proposes to regulate and enforce the Online Safety Act 2023, which itself passed into law just a few weeks ago. The consultation covers:

• The causes and impacts of illegal harms;
• How services should assess and mitigate the risks of illegal harms;
• How services can identify illegal content; and
• Ofcom’s proposed approach to enforcement.

The scale of the consultation is vast: with the documents issued by Ofcom totalling over 1,700 pages in total. Yet these are vital consultations for those in scope to engage with. Once the consultation period closes, Ofcom will consider the responses and determine:

• Its guidance on how to comply with the duty to assess the risk of illegal content appearing on their service;
• What the Code of Practice on illegal content will say. This is critically important for all platforms in scope as, though the Codes are not binding, they act as a “safe harbour”, meaning that a firm that follows their recommendations will be deemed compliant, and those who do not will need to justify the alternative measures they use (see section 49 Online Safety Act 2023).
• Its guidance on how to judge what is and isn’t illegal content.
• How Ofcom will supervise and enforce the Act.

Respondents have until 23 February 2024 to respond and, given the breadth and length of the consultation, most respondents will want to start considering the proposals sooner rather than later. 

In the meantime, for those looking for an introduction to the Online Safety Act, please do sign up for our webinars provided an overview of the Act (here) and an overview of Ofcom’s supervisory and enforcement powers (here). We will also shortly be publishing our visual guide to the Online Safety Act 2023.