UK Online Safety Act investigations ‘a warning’ to platforms

Lottie Peach, technology investigations specialist at Pinsent Masons, was commenting following Ofcom’s launch of fresh investigations into seven file sharing services and online discussion board 4chan to assess whether they have completed their illegal harm risk assessments and put appropriate safety measures in place to protect UK users from illegal content and activity. The investigations come after the services failed to respond to Ofcom’s statutory information requests.

“These investigations represent a strong statement of intent from Ofcom that it will not shy away from exercising its powers where providers fail to respond to its statutory information requests,” said Peach.

The OSA imposes strict duties on all in-scope online platforms to assess and mitigate risks related to illegal content. This includes an obligation to prevent the dissemination of child sexual abuse material and to swifty remove any such material if identified. Platforms were required to complete risk assessments for illegal content and activity on their sites by March of this year.

Ofcom’s investigations were prompted by receipt of complaints that the file sharing platforms may be facilitating the distribution of child sexual abuse material. 4chan is also being investigated for its potential failure to protect users from illegal material. The regulator had previously issued statutory information requests to these services but received no responses, triggering the formal enforcement action.

During its investigations, Ofcom will gather evidence about whether the services put appropriate safety measures in place to protect UK users from illegal content, and whether the providers of these services completed and kept a record of a suitable and sufficient illegal harms risk assessment. Ofcom will determine whether any contraventions have occurred and as part of its assessment may issue provisional notices of contravention to providers setting out the steps the platform will need to take to comply with or remedy its failure to comply with OSA duties.

The final decision may require providers to take steps to ensure compliance, such as compelling the service to produce a risk assessment. In the event of continued failure to comply, Ofcom may issue a penalty fine of up to £18 million or 10% of a provider’s global revenue. The regulator also has the power to seek a court order for business disruption measures, which could include requiring payment providers or advertisers to withdraw their services from the platform or requiring internet service providers to block access to a site in the UK.

The recent action follows an investigation launched in April into an online suicide forum and investigations into several pornography sites.

Meghan Higgins, technology investigations expert at Pinsent Masons, said: “Providers should be aware that Ofcom is acting quickly to exercise its enforcement powers after new obligations come into force. We have seen this in the context of both age verification obligations that apply to Part 5 pornography services and now a broader set of services following the March deadline to complete illegal content assessments.”

“A key takeaway for providers is that is does not matter where its service is based – if it has sufficient ‘links to the UK’, the provider must ensure it has complied with the requirements of the Online Safety Act or potentially face enforcement action,” she said.