The Online Safety Bill – An overhaul to the rules on marketing to children online

As the Online safety Bill (the Bill) makes its way through Parliament, 2023 may see the introduction of new internet safety laws which are expected to heavily impact the way in which organisations market to children on online platforms.

Although the Bill is likely to be subject to a few clarificatory changes we anticipate, based on the draft available, that businesses will have a great deal to consider before this legislation comes into force. This article provides a brief overview of the key points to be aware of.   

What will you need to do?

The main driver of the Bill is to push businesses to consider how they can reduce children's exposure to harmful content.

The Bill section 205 describes 'Harmful' as "Includes content which may case physical injuries, serious anxiety and fear; long-term conditions such as depression and stress; and medically recognised mental illnesses, both short-term and permanent".

In summary, businesses are likely going to need to:

  • Impose stringent content removal measures which proactively monitor and remove harmful content (or prevent such content from appearing in the first place).
  • Implement robust age verification procedures e.g. by using pop ups or page blocks requesting age verification before any harmful content is accessed.
  • Operate transparent user support measures – providing parents and children with clear and accessible ways to report problems online when they do arise and publishing risk assessments.
  • Give caregivers' control over what their children can see, this can be achieved through tools which automatically hide certain content likely to be within the Bill's scope.
  • Implement content monitoring systems by design, for example by designing algorithms which can help prevent harmful content from being shown to children.

What are the consequences if the new rules are breached?

The Office of Communications (Ofcom) will likely have the authority to impose fines of up to £18 million or 10% of annual global revenue to those in breach of the Bill. Further, businesses may be forced to publish details of any enforcement notices they receive for breaching safety duties, which presents the risk of reputational damage.

The Bill also creates new offences, such as:

  • The false communications offence, aimed at protecting individuals from any communications where the sender intended to cause harm by sending something knowingly false.
  • The threatening communications offence, to capture communications which convey a threat of serious harm, such as grievous bodily harm or rape.
  • Flashing offence, aimed at stopping epilepsy trolling.
  • Criminalising assisting or encouraging self-harm online.

Ofcom will also:

  • Be able to compel companies to change their behaviour, by taking measures to improve compliance, including to use proactive technologies to identify illegal content and ensure children aren’t encountering harmful material.
  • Help companies to comply with the new laws by publishing codes of practice, setting out the steps companies should take to comply with their new duties. Companies will either need to follow these steps or show that their approach is equally effective. It is likely that Companies will be encouraged to collaborate with Ofcom to ensure compliance, both following a breach and on a more proactive basis.

Our additional takeaways

These impending changes will not be the only considerations your business may need to take into account when allowing children access to content. The Advertising Standards Authority (ASA) has already issued guiding principles to bring accountability and responsibility to the internet. In light of the points above, here are a few additional takeaways from the ASA that you will need to keep in mind when advertising to children.

If you intend to use children’s personal data for marketing purposes the Information Commissioner's Office requires additional steps to be taken. These may include data protection impact assessments to protect their rights, or obtaining consent to the processing of their personal data for direct marketing. Neglecting these requirements may lead to heavy fines.

Certain products are subject to media placement restrictions and place businesses at risk for non-compliance. These rules apply to products such as foods or drinks that are high in fat, salt or sugar as well as lotteries and gambling, alcohol and e-cigarettes. Depending on the product, businesses will need to ensure that they do not target certain age groups.  

Pertinent information will need to be provided to children in a simple and clear manner. Therefore, any terms and conditions of the service or product advertised to children will need to be written in a different style to those which are targeted at adults.

When marketing communication is directed at under-12s, regulations require businesses to make sure that they are made prominent, interruptive, and adequately indicate their commercial intent if the business intends to advertise content which is significantly integrated into a wider piece of content, and unlikely to be identified clearly.

How can we help?

Re-examination of the Bill began on 19 April 2023 and has already caused much debate over its clarity and potential impact, as the Bill which would oblige companies to build “back door” access to their systems to allow law enforcers to access prohibited content. It is likely that a few more amendments will be made to address these opinions and ensure the Bill’s effectiveness.

Getting an understanding of the impending legislation as it stands, could go a long way to helping your business prepare robust marketing and creative strategies of the future.

If you would like to have a discussion in more detail about how this legislation might affect you, please get in touch with a member of our Commercial team below.

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