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Amended Online Safety Bill will likely increase costs of compliance

Posted on 24 January 2023

data-abstract

Updating terms of service and carrying out extra content moderation will likely impose additional costs on regulated businesses, according to the Government's own initial assessment of how recent changes to the Online Safety Bill will affect the compliance burden for in-scope businesses. The changes will also have "implications" for Ofcom's operating costs, to be met through an annual industry fee.

A more detailed impact assessment will be published once the Bill becomes law. For now, the Government has updated the estimates in the impact assessment it published when the Bill was introduced to Parliament in March 2022, to reflect the key amendments:

Transparency, accountability and freedom of expression measures

Although most Category 1 services i.e. the largest platforms, will already have terms of service outlining acceptable use, the Government suggests some will likely incur "some additional cost" in making those terms clearer and more detailed, to comply with their adult safety duties. Given the new duties apply to all content which services remove or restrict access to, instead of a defined list of priority content harmful to adults, there are also likely to be additional costs to businesses from enforcing their terms. As to the costs associated with assessing the impact of the Bill on freedom of expression and privacy, previously estimated at £1.1 - £11.5m, the cost of the additional requirement to include a section in the terms on the availability and treatment of news publishers and journalistic content, is likely to push costs into the "upper bound" of this range.

Illegal content duties

As currently amended, the Bill requires all regulated providers to assess not just the risk of users encountering illegal content, but the risk their services will be used for the commission or facilitation of a priority offence. The amendment was included to tackle activities such as "breadcrumbing", where child sexual exploitation and abuse (CSEA) offenders post links or have conversations on a particular site to set up a CSEA offence, which might then occur on a different platform, or offline. Nonetheless, the changes to illegal content duties are said to be "not substantially different from previous requirements".

Child safety duties

Similarly, the now explicit requirement for service providers to set out in their terms any age restrictions for using the service, and how these will be applied consistently, is not likely to change the previously estimated cost to business of £17.9 - £89.6m of using age assurance technology, since this is merely a clarification. The Government already expected providers to include details in their terms on how they enforce any minimum age restrictions, and many platforms also already specify any age restrictions in their terms of service.

Communications offences

Finally, the removal of the harmful communications offence – because of concerns it would inadvertently criminalise legal and legitimate speech – will not have a significant impact on the justice system. However, the introduction of new offences relating to flashing images are expected to result in additional costs to law enforcement and the criminal justice system, to be fully assessed in due course.

Conclusion

The more detailed impact assessment will give businesses a better idea of estimated costs; for now, the Government has simply revisited its previous assessment. It is also notable that this latest overview makes no mention of the changes coming in the Lords that, among others, will impose criminal liability on senior managers who have "consented or connived in ignoring enforceable requirements, risking serious harm to children". Tightening compliance to avoid the harshest penalties, including jailtime, will no doubt increase costs.

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