286. On 15 December 2020, the Government duly published its full response to the consultation.[1] It stated that:
- A new regulatory framework would be established with the introduction in 2021 of an Online Safety Bill. This would set out a general definition of harmful content and activity, with secondary legislation to cover priority categories of illegal offences—these would include terrorism. The legislation would also put duties on some platforms in relation to legal but harmful material (such as hate content).
- This new legislation would apply to those companies that hosted user-generated content in the UK, and facilitate public or private online interaction between service users, one or more of whom is based in the UK (it would not apply to internet service providers or the dark web, as the latter falls to the direct responsibility of law enforcement).
- It would include measures regarding senior management liability, with the Government reserving the right to introduce criminal sanctions for senior managers if they fail to comply (with the caveat, however, that this would not be introduced until at least two years after the regulatory framework comes into effect).
287. The White Paper also announced plans for sweeping new powers for Ofcom as the regulator, with Ofcom able to tackle non-compliance against any company anywhere in the world if it provides services to UK users. It would be able to impose:
- a fine of up to £18m, or 10% of global turnover (whichever is the higher);
- a Business Disruption measure, Level one: this would impose measures that make it less commercially viable to provide services to UK users; and
- a Business Disruption measure, Level two: Ofcom to obtain a court order to block a non-compliant company's services from being accessible in the UK.
Homeland Security Group confirmed that whilst they do not at present have any plans to second any Home Office staff to Ofcom, they have been brokering introductory meetings between Ofcom and law enforcement partners (including those responsible for tackling online terrorist content) with a view to helping Ofcom develop required expertise.[2]
288. It is not exactly clear as to whether Ofcom has the capability and expertise to exercise this ambitious new remit—or indeed how long it will take Ofcom to develop this required skill base. Homeland Security Group acknowledged that Ofcom will need to build their capability:
If Ofcom were sitting here now, they would say they don't have that capacity today. I would agree with that, which is one of the reasons why this will be implemented over time rather than immediately.
I think, conceptually, they are the right people to do this. That seems to be a broad sense, both within UK government, but most importantly within the CSPs. They will need to grow capability and they will need to grow
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