The Online Safety Bill has been introduced to Parliament in an effort to protect individuals online in a number of different ways.
The Bill seeks to crack down on illegal content (such as child sexual exploitation) and content that is harmful but not illegal (such as messages around self harm) in a number of ways.
Although much of the conversation around the Bill has focused on its impact on social media, video games businesses do need to understand the Bill and how they may be affected by it.
That’s why we’ve written this guide, with the help of Taso Advisory, to make sure your business is prepared for the impact of this landmark piece of legislation.
Are games businesses in scope for the Online Safety Bill?
The short answer is yes. Online video games offering user-to-user interaction or the ability for users to create content are in scope for the Online Safety Bill and will need to comply with it, along with social media services, dating apps, search engines and more.
Games without an online functionality are not covered by the Online Safety Bill and will not need to take further steps to comply.
How harms specifically are covered by the Online Safety Bill?
There are a number of categories of harm that sit within the wider labels of ‘illegal content’ and ‘harmful content’.
- Priority illegal content, which will be defined by the Secretary of State through secondary legislation, but will include subjects such as threats to kill, sexual images, public order offences, terrorism offences, child sexual exploitation, fraud and other illegal content that affects an individual or individuals.
- Content that is harmful for children, which will be divided into primary priority and priority content (defined in secondary legislation by the Secretary of State) and non-designated content that’ll be harmful for children (which will emerge through risk assessment).
- Content that is harmful for adults, divided into priority content (again defined by the Secretary of State) and non-designated content that is harmful for adults.
The extent to which a service has to demonstrate it is able to tackle the harms listed above will depend on how services themselves are categorised by the Bill.
How does the Online Safety Bill categorise services and what does this mean for games?
The question is how extensively the Bill will cover them. The bill will categorise services into three groups:
- Category 1 services allow user to user interaction or the sharing of user generated content where the risk of harm is considered greatest.
- Category 2A service allow users to search websites, either in a standalone way or as part of a service.
- Category 2B services off similar interactions as Category 1, but fall into this group because the risk of harm is considered lower.
Individual services will be categorised based on their user base and functionality. The thresholds for these categorisations will be determined over time by the Secretary of State and the new regulator Ofcom, but only after the Bill has received Royal Assent.
There will be a greater burden of responsibility on Category 1 services than on Category 2B services.
We believe that most online games are likely to fall under category 2B, where the burden is lighter. But it will still put the burden on companies to demonstrate the steps they’re taking to prevent harm, which means games businesses should take stock on their current processes to identify any potential gaps.
Is there anything that online games that cater for children need to specifically consider in regards to the Online Safety Bill?
All services must carry out children’s access assessments to see if their games are likely to be accessed by children. There are two conditions to consider whether this is true:
- The access requirement, which is met unless there are systems like age verification or age assurance in place to restrict access.
- The child user condition, which is met if a significant number of users of the service are children or if the service is likely to attract a significant number of users who are children.
Most games businesses, as it currently stands, are likely to meet these requirements. This will mean that companies will need to think carefully about what they can do to either mitigate for those measures or take steps to no longer meet the conditions (e.g. implementing age verification)
Note: a service that doesn’t carry out a children’s access assessment will also be considered accessible by children by default, which means it will be important to complete.
How will the Online Safety Bill be enforced and what penalties could games businesses face?
Ofcom has been appointed as the regulator for the Online Safety Bill. It will prepare Codes of Practice setting out how services, including games companies, can comply as well as maintaining a register of regulated services.
It will have a range of powers such as the ability to levy fines of the higher of up to £18m or 10% of global turnover, block non-compliant services from being accessed in the UK and wider powers to inspect, audit and force companies to provide information about they operate.
The Bill has also creates new senior management liability offences that can lead to named individuals in a company being imprisoned for up to two years.
When does the Online Safety Bill come into force?
There is currently not a fixed date for when the Online Safety Bill will come into force. However, the Bill will likely proceed through Parliament no sooner than the end of 2022. There will then likely be a further 12 months for an implementation period from the date it receives Royal Assent, during which time questions about categorisation will be resolved.
How can I prepare my games business for complying with the Online Safety Bill?
We will continue to provide updates on the Online Safety Bill as it proceeds through Parliament. We will also look to produce resources and events to help your business to understand what you need to do to comply with the bill during the implementation period. Follow us on social media and sign up to our newsletter to hear more.
You may also wish to speak with a dedicated interactive entertainment lawyer for further advice. You can find our legal members in our directory here.