The Online Safety Act 2023 celebrates its first birthday this week - as does the OSA Network. So it would be remiss of us not to mark the occasion with a review of what’s happened in the past 12 months and to look forward to the year ahead.

We could of course talk about the growth of our Network, which now counts over 70 organisations in its membership - from the largest national charities to grassroots organisations, expert academics and individual campaigners - and whose contributions to our regular discussions and support for our collective endeavours are hugely valuable. But we hope they know that already and we’re proud to work alongside them on this issue.

We could definitely talk (at length) about where we’re at in terms of Ofcom’s implementation of the Act and our concerns as to where that might go next. But we’ve discussed that plenty of times already and all of that material is easily accessed on our website.

We could also spend many words musing on what more the new Labour Government can - and should - do to tighten up the existing OSA regime and the levers that are available to them to do so. But that will be for another day.

So, now that we’ve got your attention, we’re going to mark the OSA’s first birthday in a slightly different way: by not talking about it at all.

Instead, we’re going to look at the wider legislative and policy landscape and the reasons to be cheerful about some of the other developments we’ve seen in the past year and what they mean for user safety and business accountability in the wider digital world.

Legislation

The Digital Markets, Competition and Consumers Act, which received Royal Assent on the very last day of the previous Parliament, reforms the existing competition and consumer protection landscape in the UK; a recent update from the Government confirmed that parts of it will come into force later this year or early next, with secondary legislation due in Parliament this autumn.

The DMCC Act introduces a new ex ante regulatory regime for digital markets, significantly expanded investigative and enforcement powers for the Competition and Markets Authority (CMA) (via the Digital Markets Unit (DMU)), material refinements to the UK merger control regime, and (in a part that is sometimes overlooked in digital discussions) a new enforcement regime for the consumer protection rules, giving the CMA investigation and enforcement powers similar to those in the competition regime. Some of the consumer powers target unfair practices (like drip-feeding costs) and the Secretary of State will have the power to designate certain other practices as “unfair” by way of secondary legislation.

Many of the firms that will be under the supervision of the DMU in relation to digital competition and consumer regulation are also those “sponsored” by DSIT, in its role overseeing the tech sector, and will also be accountable to Ofcom in its role implementing the OSA regime. (Note also that Ofcom has some competition law responsibilities.)

The Media Act, which also just made the cut before Parliament was prorogued in May ahead of the General Election and which Ofcom is also responsible for implementing, places new duties on video-on-demand (VoD) services. VoD services include operators such as Netflix and Amazon, but could apply to a wider range of services including some YouTube channels as well as freestanding websites carrying audiovisual channels (e.g. audiovisual services trying to look like media).

A recent commencement order brought some of the regime into force, including the VoD Tier 1 services regime. Significantly, Tier 1 services - whether they are based in the UK or abroad - will have duties to comply with a content code that brings the rules closer to broadcast TV standards. This does however lead to potential problems arising from overlapping content regimes, but also opens up the possibility of addressing some of the harm caused by online influencers. We do not yet know which services will be designated as Tier 1: the DCMS Secretary of State recently wrote to Ofcom to ask them to prepare a market report on VoD in the UK, on which her designation decision will be based early next year, and Ofcom will then consult on draft guidance for those Tier 1 services after that; meanwhile, the Government has also made a statement on which services are likely to be caught by prominence rules.

Policy developments

There are also moves afoot - though a long way away from legislative change - which might address some of the obvious gaps in the OSA regime, including the recently announced Speaker’s Conference to examine threats against candidates and campaigners during election periods; and the Pornography Review, led by Baroness Bertin, which the Government recently confirmed will report before the end of the year.

The Online Advertising Programme is still, however, effectively dormant with the last meeting of the Taskforce taking place last February; reinvigorating this might open up some avenues to address some of the harm arising from paid-for advertising, particularly relating to mis- and disinformation. The next steps on the previous Government’s Gambling Review are also, as yet, unclear, though Lisa Nandy - the DCMS Secretary of State - recently told the Commons that she wanted the sector “to thrive”.

The Government’s suite of Missions is going to be an important part of the internal Government policy jigsaw, providing a route for other Departments dealing with the fallout (and spiralling costs) of the harm that arises online to exert pressure on DSIT to address it at source, in its role not just as the lead for the OSA regulatory regime but also as the sponsor of the tech sector.

Departments that will be keen to exert pressure via this route include:

• Home Office, who are jointly leading with the Ministry of Justice on the target to halve violence against women and girls, which is part of the Government’s “Safer Streets” Mission;
• Education, which is dealing not just with the distractions and impacts of smartphones on pupils’ behaviour and attainment, but also the impact of misogynistic influencers, such as Andrew Tate, on the abuse and harassment of girls and female teachers in schools;
• Health, where Wes Streeting’s focus on prevention will need to extend to the online sphere if his Department, and the NHS, are to turn the tide on high rates of suicide and self-harm and the impact of the mental health crisis, particularly on teenagers and young adults. In his recent NHS review, Lord Darzi said: “It is not just our material conditions that impact our health and therefore the NHS. The rise in social media use has reshaped our lives. While there have been many benefits, there are harms, too. Studies are split on the impact on our physical and mental health. But it seems highly unlikely that the dramatic rise in mental health needs is wholly unconnected from social media. Studies have found 14-year olds that use social media excessively (more than five hours a day) were more likely to be depressed.”

Parliamentary plans

In Parliament, there are a number of Private Members Bills (PMBs) which will provide useful opportunities for debate on wider online and digital issues, even if they don’t eventually reach the statute book in that form: in the Lords, on AI in public services and on Non-Consensual Sexually Explicit Images and Videos; and in the Commons, on smartphone safety.

There are also a series of legislative vehicles ripe for use, should backbenchers or Opposition leads take up the baton, for targeted amendments to further tighten up the online safety regime’s loopholes and/or address the new or emerging threats online.

These include:

• The Data (Use and Access) Bill - introduced into the House of Lords this week (the Government’s press release is here) which includes the welcome inclusion, via a proposed amendment to the OSA, of the long campaigned-for measure to allow data access for researchers;
• The Cyber Security and Resilience Bill - due early next year;
• The Product Safety and Metrology Bill- which has received its Second Reading in the Lords and which could potentially be a route to addressing some of the harms arising from AI-enabled products via a “safety by design” approach;
• The Crime and Policing Bill - which, given the reliance on criminal offences in the OSA regime, is the route for addressing some of the gaps in protections, particularly for women and girls, relating to non-consensual intimate image based abuse, deepfakes and other AI-generated content;
• The Victims, Courts and Public Protection Bill - which, in a complementary way, could be used to address some of the shortcomings arising from the otherwise narrow treatment of illegal content in the OSA regime. For example, the lack of recourse for individuals revictimised by the ongoing sharing of non-consensual intimate images that may have been caught initially by the illegal content duties (eg takedown) but only in relation to the original perpetrator’s post; and
• (At some point) an AI Safety Bill - though the DSIT Secretary of State has gone out of his way to provide assurances to Big Tech that this won’t be a “Christmas Tree Bill” but will instead be “highly targeted”.

Regulatory coordination

Finally, the overlapping/intersecting role of the regulators in the digital world continues to evolve and will be increasingly critical in both identifying areas that fall between gaps in either their remits or their regulatory obligations, or horizon scanning for emerging risks that need future regulatory intervention. The Digital Regulation Cooperation Forum is currently consulting on its annual work plan and the new Government has a powerful tool at its disposal (should it wish to use it) in the form of its Statements of Strategic Priorities for individual regulators. With a bit of cross-Whitehall coordination, these Statements could become mutually reinforcing in placing the rights and protection of consumers at the heart of all the individual regulators’ objectives, even within the context of a drive towards a pro-innovation (or “anti-regulation”, as ex-Google chief Eric Schmidt would prefer) environment for business.

The Government’s Industrial Strategy consultation, launched alongside its Investment Summit, confirmed that they “will be consulting on a draft of the next strategic steer to the CMA from the Business and Trade Secretary to seek stakeholders’ views on competition regulation priorities. Government will also be seeking views on similar statements to major regulators in the coming months”.

We have a number of thoughts on what the DSIT Secretary of State might put in his Statement of Strategic Priorities for Ofcom - but that would require us to talk about the Online Safety Act (again).

So, for now, here’s to the next 12 months … !