Online Safety Bill – are you ready and what does it mean for your law firm?
At the time of writing, the online safety bill is at the Report Stage of the bill at the House of Lords, i.e. it’s very nearly coming to fruition.
MPs and law makers are cracking down on the use of “Big Tech”, but will this new legislation be more detrimental to our economy and our law firm businesses than we realise?
The bill is bringing on Ofcom to regulate. Because of abuse of data handling and exposing children to harm, the legislation will be brought in to regulate online platforms like Facebook, Whatsapp and Google, whilst also requiring website owners to look at their current GDPR and privacy policies.
The government has said it intends to hold "senior managers" personally liable for failures of compliance by tech firms. What is less clear, without detailed examination of the bill, is what this actually means for us in the legal profession from an operational perspective, and our marketing departments or our outsourced website developers.
This is quite a complicated piece of legislation. The online safety bill (OSB) has the potential to impact the UK from the rest of the world’s internet experiences.
Social media big tech will be subject to harsh rules as they will be expected to tackle both illegal content, such as terrorist propaganda and child abuse, as well as “legal but harmful” content, such as misinformation and cyberbullying. Of course, this amendment is there to protect children.
Here is a list of some of the social media and internet platforms who might leave the UK if the online safety bill passes (click on each link to find out the news from each one as to their responses to the bill):
Giant firms within the international playing field (that we rely on for communications, social media and discussion platforms) won’t change the way they operate globally just because we have new laws.
Meredith Whittaker, the president of the Signal Foundation, which runs the not for profit encrypted private messaging app, and Conservative MP Damian Collins, a former tech minister who played a key role in developing the online safety bill are talking about it HERE. Worth a watch from both sides of the argument.
We believe everyone deserves the right to safety, privacy and freedom of speech…. there is no way to create a backdoor that only the good guys can come in. There is no search thing as a safe backdoor. If the British police can get in, then so can others.
Meredith Whittaker, President of Signal
What impact will the new legislation have on law firms?
According to the government’s impact assessment, over 25,000 companies will be affected by the bill, but what will it mean for law firms as a business?
The bill is complex and understanding the impact surrounding data protection (think GDPR on a wider scale – see below) as well as figuring out how to implement its requirements into your law firm could be extensive. The implications of breaching the bill will have to be considered in detail.
Under the proposed bill, websites and platforms are going to have to take steps to protect their users from illegal content, such as hate speech, violence, harassment, self-harm and suicide, or child-abuse material. If, for example, your website blog has an open comments section then think about switching that off.
It’s essential that law firms as trusted advisers, assess the impact of their services on their website users and analyse any risk of potential harm from the content that it provides.
Examples of steps for your website or social media platforms:
- Assess any risk that may be in your website’s algorithms together with any potential risk across multiple platforms where your users may be exposed to potentially harmful content.
- Screen and analyse content for possible violations and take immediate action when any violations are found.
- Go hard with your risk mitigation process to ensure evidenced reports are written about any concerning content, particularly material that could be considered a criminal offence.
- Provide clear, age-appropriate terms and conditions regarding the company’s acceptable use policy and ensuring that these are followed.
The bill and the government are placing legal liability on the operators of websites and platforms if they fail to take adequate steps to protect their online readers and users. There could be a potential liability for law firms and their owners (of their website) if their users are “abused” or “harassed” on their site. As mentioned before, it’s probably best to take this time to look at your current privacy policies and think about how your users can respond or react to any content on your site.
The Online Safety Bill and GDPR Policies
The OSB includes provisions for transparency and accountability in your firm’s data processing and your policies within. This means that law firms would have to publish easily accessible information about their data processing activities, including personal data collection and use. Currently, you will have a Privacy Policy on your website that should include how it collects data and list the collections. Ofcom would have the authority to investigate and act against your law firm if it breaches data protection laws.
Law firms will need to update their data policies to ensure they adhere to the bill (if/when it becomes law) as the regulator can impose fines and other sanctions for non-compliance.
Senior partners, sole practitioners, practice managers et al in your law firm must ensure they update their data processing practices by implementing vigorous data protection measures. It’s a good time in any event to review your firm’s privacy policy to ensure it aligns with the new requirements.
What should we do as a firm to get ahead of the Online Safety Bill requirements
Depending on the size of your law firm, your online platform use (website chat, social media use etc) it might be useful to prepare your firm with necessary steps to stay compliant with this new bill goes through.
Here are some ways to do so:
- Keep monitoring: follow new developments via the government’s website channels as to updates, amendments, and timings HERE
- Carry out a risk assessment – this will help identify any areas where compliance may be an issue.
- Review and update policies – this includes terms and conditions, privacy policies, website content and data-handling processes to ensure they meet the new regulations’ requirements.
- Employee training – you will already offer training for you and your employees with the ILFM for SRA accounts rules, anti-money laundering, risk management, etc, so why not train employees to know their roles when it comes to online safety regulations. Client care, for example, in line with government guidelines and informing them of their responsibilities related to online safety practices.
Summary of Online Safety Bill and Law Firms
We asked Arun Chauhan FICA, Prof.PgDip (FCC), a specialist fraud disputes & financial crime compliance lawyer at Tenet and Trustee Director Fraud Advisory Panel about his thoughts on any impact for law firms from the OSB.
Arun said he can’t envisage law firms being impacted by the OSB, especially the operational side. Because most law firms don’t use their websites to advertise or promote content, or indeed use chat functions the bill is unlikely to cause harm through fraud (or other crimes the OSB is focussed upon).
When it comes to lawyers and work, breach of the OSB may not give a direct cause of action for a consumer that lawyers can act upon.
“We may see some form of group action claims trying to say breach of the OSB gives rise to a damages claim but for lawyers advising clients affected by the conduct the OSB aims to guard against, we all need to be aware of the expectations and making clear reference back to the OSB when complaints are put forward to a social media platform or search platform if they have caused harm.”
Arun Chauhan, Tenet Law
For the few that will advise the tech platforms or OFCOM, be prepared for some lengthy debate on intention, meaning and application of the OSB!
The Information Commission’s Office (ICO) and Ofcom have their “joint statement” from November 2022 in a press release that you can read HERE for more information.
The ILFM shall keep this conversation going and update as and when.
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