Digital Regulation | UK Regulatory Outlook October 2024

UK updates

Ofcom states that duties to comply with illegal content safety requirements should come into force in March 2025

Ofcom has published an updated roadmap, setting out its progress in implementing the Online Safety Act 2023 (OSA) since it became law a year ago and presenting its plans for next year.

Ofcom expects the illegal content safety provisions to come into force in March 2025, but says that publication of the register of categorised services will be delayed. See our recent Insight for more details.

Sharing of non-consensual intimate images to be made a 'priority offence' under the OSA

The UK government has announced that the offence of sharing intimate images without consent will be made a "priority offence" under the OSA.

The amendment is set out in a draft statutory instrument, The Online Safety Act 2023 (Priority Offences) (Amendment) Regulations 2024. This will amend Schedule 7 of the OSA (priority offences) by adding an offence under section 66B of the Sexual Offences Act 2003 (SOA) (sharing or threatening to share intimate photograph or film), which offence was introduced by the OSA and added to the SOA in January 2024.

The "priority offences" relate to the most serious forms of illegal content. Regulated services will be obliged to proactively remove this material when they become aware of it on their platforms, as well as take measures to prevent it from appearing in the first place. For more information on the OSA see our Insight.

Update on repeal of VSP regime by the OSA

Under the OSA, the UK government is obliged to give six months' notice of its intention to repeal the current video-sharing platforms (VSPs) regime.

On 22 May 2024, the Online Safety Act 2023 (Pre-existing Part 4B Services Assessment Start Day) Regulations came into force, setting the "assessment start date" as 2 September 2024. This date marks the commencement of the six months' notice for repeal of the VSP regime. This is also the date from which providers of pre-existing VSP services will need to carry out risk assessments of their services in line with their obligations under the OSA.

The final date of repeal will be decided by the government in secondary legislation. Ofcom anticipates this will be after its codes of practice for the protection of children come into force, which it expects will be around July 2025 (see above). The date of repeal will mark the end of the current transition period and the date when pre-existing VSPs will become fully subject to the OSA. Now is therefore the time to prepare.

UK government requests Ofcom to prepare report on designation of Tier 1 services under Media Act 2024

See Consumer section.

Ofcom launches consultation on fees and penalties regime under the OSA

Under the OSA, Ofcom's costs for its work in relation to the online safety regime are to be covered by providers of regulated services under a fees and penalties regime to be implemented by Ofcom working with the secretary of state (the government has previously published its guidance to Ofcom on determining the fees – see this Regulatory Outlook). Ofcom has launched a consultation on draft secondary legislation to define "qualifying worldwide revenue", which will be used to calculate both the fees and the maximum penalty that Ofcom will be able to levy against providers for breaches of the OSA.

Ofcom is proposing to define qualifying worldwide revenue as the total revenue of a provider referable to the provision of regulated services anywhere in the world. Where the provider is found liable together with one or more of its group undertakings, it will be calculated on the entire group and will be the worldwide revenues generated by the group in the most recent accounting period of those found liable, whether the revenues relate to regulated services or not.

Providers of regulated services will have to pay fees if their qualifying worldwide revenue meets or exceeds a certain threshold to be set by the secretary of state based on Ofcom's advice, which the regulator expects to submit in April 2025. Ofcom proposes a £250m threshold and suggests exempting providers with UK referable revenue under £10m.

The consultation closes on 9 January 2025. According to its updated roadmap, Ofcom expects the fees regime to be implemented by the 2026/27 financial year.

EU updates

Council of the EU adopts position on measures to facilitate dispute resolution in digital age

The Council of the EU has adopted its negotiating mandate on a proposal for a directive to adapt the alternative dispute resolution (ADR) framework to the challenges of the digital world. The proposal was made by the European Commission in October 2023 (see this Regulatory Outlook for background).

The Council's mandate:

• Limits the scope of the ADR directive to disputes arising under contract, including the stages before a contract is concluded (for example, advertising, information provision) and after the end of a contract (for example, use of digital content).
• Allows Member States to decide on the application of ADR procedures to disputes with third-country traders.
• Makes ADR accessible in both digital and non-digital format and ensures that companies would have to inform consumers in advance when non-high-risk automated systems (bots or AI) are used in decision-making processes, as is the case for high-risk systems covered by the EU AI Act.
• Extends the period for businesses to reply to an ADR request from 20 to 40 working days in complex disputes or in exceptional circumstances.
• Gives the Commission three months, once the directive has entered into force, to develop a new digital interactive tool to replace the current online dispute resolution platform.
• Gives Member States an extra year to put the necessary legislation in place.

The negotiating mandate formalises the Council's position, meaning that it can now commence negotiations with the European Parliament.

EU Commission publishes outcome of its digital fairness fitness check of EU consumer law

See Consumer section.

Council of the EU adopts position on measures to facilitate dispute resolution in digital age

See Consumer section.

Council of the EU adopts the new Product Liability Directive

See Products section.

Council of the EU adopts Cyber Resilience Act

See Products section.

International updates

UK and US governments sign online safety pact

The UK and US governments have signed a joint statement on online safety, calling for platforms to go "further and faster" to protect children online by taking "immediate action" and continually using the resources available to them to develop innovative solutions, while ensuring there are appropriate safeguards for user privacy and freedom of expression. Vital to achieving this goal are, according to the statement, age-appropriate safeguards, including protections from content and interactions that harm children's health and safety.

The signatories commit to setting up a new joint government working group on children's online safety, which will work on key areas, including promoting better transparency from platforms. It will also consider researchers' access to privacy-preserving data on social media to assist in understanding the impacts and risks of the digital world on young people, including generative AI.

OECD committee on consumer policy adopts declaration on protecting and empowering consumers in the digital and green transitions

See Consumer section.