Online Safety Act 2023

Legal background

29. Prior to the exit of the United Kingdom exit from the European Union, the legal framework for the regulation of online services was primarily set out in the EU e-Commerce Directive (eCD)1. The eCD detailed the rules for online service providers in respect of transparency and information requirements, rules for cooperation between member states, and, most importantly for the purposes of the Act, a framework limiting the liability of online intermediaries for the content they host on their services.
30. The eCD prevented member states from imposing liability on service providers who provide a service that ‘consists of the storage of information provided by the recipient of the service’ for content created by users, so long as ‘the provider does not have actual knowledge of illegal activity or information and ... is not aware of facts or circumstances from which the illegal activity or information is apparent’. This limitation was contingent on the host, upon gaining knowledge of such content, removing it expeditiously. Article 15 of the eCD also contained a prohibition on the imposition of requirements on service providers to generally monitor content they transmit or store, or to actively seek facts or circumstances indicating illegal activity.
31. Following the exit of the United Kingdom from the European Union, there is no longer a legal obligation on the United Kingdom to legislate in line with the provisions of the eCD.
32. The Audiovisual Media Services Regulations 2020 transposed the EU’s revised Audiovisual Media Services Directive (AVMSD)2 into United Kingdom law. The AVMSD introduced a new regulatory framework for video sharing platforms. A principal feature of a video sharing platform is that it enables users to upload and share videos with members of the public (with the platform having no editorial control over the content of the video). The Government transposed the VSP framework into Part 4B of the Communications Act 2003, which came into force on 1 November 2021. Further detail on the current regulation of video sharing platforms is set out above.
33. Other related legislation includes the Digital Economy Act 2017 ("DEA"). Section 103 of the DEA obliged the Secretary of State to issue a code of practice for providers of online social media platforms setting out guidance on action it might be appropriate for social media providers to take to prevent bullying, insulting, intimidating and humiliating behaviours on their sites. The code of practice was published on 8 April 2019. Part 3 of the DEA put forward a statutory requirement for all commercial pornographic websites to prevent children’s access. The Act received Royal Assent in April 2017 but Part 3 was not fully commenced. The government announced in October 2019 that it would not commence Part 3 of the 2017 Act, and would instead repeal Part 3 and deliver its objectives through the online harms regulatory framework. Part 3 is repealed by section 212 of the Online Safety Act.
34. OFCOM are the independent regulator for communications in the United Kingdom. Their remit covers the regulation of broadband and telecoms, TV, radio, video-on-demand services and postal services. They are also responsible for managing the effective use of the radio spectrum.
35. OFCOM were established under the Office of Communications Act 2002. OFCOM are a statutory corporation, and their governance arrangements are set out in the Office of Communications Act 2002. As a public authority, OFCOM are also subject to other legal duties, including requirements to ensure they act in a way that is compatible with human rights (under the Human Rights Act 1998) and comply with data protection legislation.
36. OFCOM’s powers are found in the Communications Act 2003 and the Wireless Telegraphy Act 2006, as well as other enactments including the Broadcasting Acts 1990 and 1996, and the Postal Services Act 2011. The Act amends the general duties of OFCOM, as set out in section 3 of the Communications Act 2003, to extend them in relation to online safety matters.
37. The Online Safety Act repeals the following existing legislative provisions which relate to the regulation of internet services:
38. Part 3 of the Digital Economy Act 2017 (online pornography);
39. Section 103 of the Digital Economy Act 2017 (code of practice for providers of online social media platforms); and
40. Part 4B of the Communications Act 2003 (video-sharing platform services), Part 4 of the Audiovisual Media Services Regulations 2020 (S.I. 2020/1062) (which inserts Part 4B into the Communications Act 2003), and Regulation 4 of the Audiovisual Media Services (Amendment) (EU Exit) Regulations 2020.
41. The Online Safety Act repeals the following existing legislative provisions which relate to communications offences:
42. Subsections (2)(a) and (b) of section 127 of the Communications Act 2003 (improper use of electronic communications network), in so far as they extend to England and Wales; and
43. Subsections 1(1)(a)(ii), 1(1)(a)(iii), and 1(2) of the Malicious Communications Act 1988.
44. Section 33 of, and Schedule 8 to, the Criminal Justice and Courts Act 2015.
45. The Online Safety Act repeals the following existing legislative provisions which relate to the sharing or threatening to share intimate photograph or film offences:
46. Sections 33 to 35 of the Criminal Justice and Courts Act 2015 (disclosing or threatening to disclose private sexual photographs and films with intent to cause distress).
47. Section 187: offence of sending etc photograph or film of genitals.
48. Section 188: offences of sharing or threatening to share intimate photograph or film.