I mentioned in my (off normal topic) post of 15 November last year, that I am a member of a motorcycle forum. I am also a member of other online fora, but the bike forum is the only one I really engage with often enough to care about this latest bit of legislative stupidity.
In March of this year, the first parts of the 2023 UK Online Safety Act will come into effect. The Act was, and is, designed to protect children and adults from potential harms online and creates new legal duties for the online platforms and apps affected.
As with much legislation, particularly that covering activity on the ‘net, there are some (probably) unintended consequences arising from the broad way in which the legislation was drafted, and approved.
The Act covers /all/ online systems which provide search services and/or services that allow users to post content online or to interact with each other. The bike forum I care about does just that.
Now. anyone thinking about the Act will probably have concluded that it is aimed at the main online services such as those provided by X/Twitter, Facebook, Google, Instagram, Youtube, TikTok et al. It is, but the way the Act has been drafted means that all online services which offer search or user to user communication facilities to a significant number of UK users fall within its remit. Unfortunately, the Act does not specify what “significant” means, nor does it specify the exact consequences of failure to adhere to its strictures for small sites (where “small” is not defined either). What the Act does say is that failure to comply could allow the UK regulator, Ofcom, to impose a fine of £18 million ($22 million) or 10 percent of the site’s global revenue – whichever is greater – for such failure.
Obviously this is ludicrous and no-one could possibly believe that Ofcom would actually impose such draconian fines on an online hobby forum with membership in the low thousands. That said, the law is drafted in such a way that in order to assure Ofcom that the site is compliant with the Act’s requirements certain measures must be taken to prove that compliance. The very fact that this proof is necessary is causing some small sites to consider closing, or actually closing, simply because of the additional administrative burden. Bear in mind that most small sites will have only one, or perhaps two, administrators or moderators. These people undertake the necessary work for free in their spare time. It is usually, after all, a hobby (as is my administration of this site).
The Register has published a nice article about the implications of the Act for small site operators. Russ Garrett, a software developer and systems architect who has built cloud based software systems, has also published a rather good summary of the Act.
Ofcom itself publishes an online checker which allows site owners to find out for themselves whether they are likely to be covered by the Act.
I completed the Ofcom questionnaire as if I were the admin/moderator for my bike forum and got the following response:
Does the Online Safety Act apply to your service?
Based on the answers you have provided.
Yes
the Online Safety Act is likely to apply to your online service, or part of it. Based on your answers, your online service (or a relevant part of it) is likely to be a user-to-user service / search service.
You can see your answers in full below.
Please note that this result is indicative only and based on the answers you have provided. It does not constitute legal advice or an Ofcom decision. It is for providers of online services to assess their service and/or seek independent specialist advice in order to determine whether their online service (or the relevant parts of it) are subject to the regulations and understand how to comply with the relevant duties.
What next?
As the regulations are likely to apply to your online service, you have legal obligations to fulfil. You should:
– Check how to comply with your illegal harms obligations. You can use our step-by-step guide to understand what you need to do next.
– Read about the protection of children duties. You may have additional obligations to protect child users on your service.
– Subscribe to online safety updates for business to get up-to-date information on the regulations, any relevant changes, what you may need to do, and new publications and research.
You can also seek independent professional advice to check whether the Act applies to your online service and what that means for your organisation.
Following that answer, Ofcom then points you to a Risk Analysis tool to help with compliance checking. I have not attempted to complete that checklist. largely because it says that it will probably take about an hour or more, but also because I may not be able to answer some of the questions appropriately without the necessary knowledge available to the site’s (single) moderator.
So, from what I have read so far, I conclude that my small hobbyist bike forum, run by a single person in his spare time, simply for the joy of providing a service to like minded hobbyists will likely fall within the scope of an Act aimed at curtailing the wilder excesses of practically unmoderated sites like Musk’s X, or Zuckerberg’s Facebook. That is just plain stupid.
The level of additional effort required to keep small hobbyist forums compliant, whilst perhaps not hugely significant, does add a burden to the site managers. At the very least they must be able to demonstrate to Ofcom (if asked) that they have carried out a “suitable and sufficient” illegal content risk assessment. Furthermore, this must be done before 16 March of this year. If those site owners decide that the extra work is not worth their effort, then many sites may close, or through simple ignorance, or lack of proper preparedness, find themselves in breach of a law which should never have impacted them.
Ofcom should have enough on their plate chasing the large online service providers rather than the likely hundreds of thousands of small UK forum providers and bloggers which allow online comments so realistically I feel that they will not even think about doing anything in that space. Nevertheless, the law should never have been drafted so badly that small sites should even have to worry, or Ofcom to care.