While we wait for the next consultation from Ofcom, there have been a couple of other developments that will be of interest to those preparing to comply with the Online Safety Act.

Public Accounts Committee report

The Public Accounts Committee has issued a report on Ofcom's readiness to regulate online safety.  The government has until 21 April to respond.

It takes a pessimistic line, saying that years may pass before the OSA makes a noticeable difference to people’s online experience. However, it also says that Ofcom has made a good start in preparing for its new role as regulator.  The Committee questions how Ofcom will manage public expectations for what the regulatory regime will achieve, as it will not be acting on individual complaints and because overseas providers in particular will pose a significant challenge.

The Committee's inquiry heard that there could be 100,000+ service providers falling within Ofcom’s new scope, most of them small businesses and/or based overseas.  This is a massive number compared with the 22 or so platforms currently regulated as video sharing platforms - the VSP regime has been considered as a bit of a test run for Ofcom, but the OSA regime is a whole different beast.

The Committee fears that there will be public disappointment with the new regulatory regime, which will not be fully implemented until 2026, if people cannot quickly see improvements to their online experience or understand how complaints are acted on.

With the above in mind, the Committee has made the following recommendations:

• Ofcom must meet its deadline to introduce codes of practice in the two priority areas of illegal harms and protecting children within 18 months of the OSA becoming law. 
• Ofcom needs to develop mechanisms to provide feedback to complainants, particularly where this has contributed to Ofcom taking action against a service provider. 
• Ofcom should urgently finalise its automated compliance monitoring systems and clarify its enforcement approach with service providers where engagement has not proved possible.
• Ofcom should set out the modelling it plans to undertake on the fee regime; how it will transparently report on its approach to the fee regime; and how it will transition from the current funding regime to a self-financing model. 
• The Department of Science, Innovation and Technology and Ofcom need to determine how often they should undertake regular skills audits to ensure they have the right people.
• Ofcom and DSIT should accelerate their work on evaluating the regime and collaborating with other regulators (both UK- and overseas-based), so they can identify emerging risks and better understand how regulation is working, including identifying the most effective solutions.

The Committee is not the only body to express concern that the OSA is not being implemented quickly enough. Which? has said that the rate of scam ads has not slowed down since the Act received Royal Assent last year, and has highlighted the delays in taking action while "Ofcom figures out how to regulate the Act in practice”.

Super-complaints

The UK government also consulted earlier this year on certain aspects of the Act, including super-complaints.

According to the government, super-complaints will be crucial to the new regulatory regime. This is because they will enable eligible entities to bring systemic issues that arise across services, or in exceptional circumstances on one service, to Ofcom's attention. This will help ensure that Ofcom is made aware of issues that users are facing, of which it may not otherwise have been aware.

Super-complaints will work alongside Ofcom’s ongoing research and horizon scanning to help make sure that the regulatory framework stays up to date and fulfils its aims of keeping users safe.

The Act requires the Secretary of State to set out in regulations the eligible entity criteria and the procedure for  super-complaints:

• Eligible entity criteria. Entities will need to meet the eligible entity criteria to be eligible for submitting a super-complaint to the regulator.
• Procedure for super-complaints. The Act provides that this may include provisions setting out how Ofcom may be notified of an intention to make a complaint, the form and manner of such a complaint (including evidential requirements), steps that Ofcom must take in relation to it (including publishing responses), and time limits for each step.

Super complaints are not new, and are often made under the Enterprise Act 2002. Examples include Which? making a super-complaint to the CMA about pricing in the groceries market, and Citizens Advice making a super-complaint about the so-called “loyalty penalty”.  

The government will use the consultation responses to publish the final regulations later this year.