May 15, 2023
Ofcom explains that on 5 December 2022 the Government added an amendment to the Online Safety Bill setting out the process for repealing the VSP regime:
- Schedule 17 of the Bill sets out how VSPs will move from being regulated under the VSP regime to being regulated under the new online safety regime; and
- Schedule 3, Part 3 of the Bill sets out details of the timings for when VSPs providers will need to begin conducting the risk assessments that will be required under the Bill.
Ofcom has summarised the repeal amendment (as currently drafted in the Bill), its provisional understanding of its impact on timings, and next steps for VSP providers. Ofcom notes that the Bill is still going through Parliament, so these provisions could change over the coming months:
- when the Bill comes into force, UK-established VSPs will enter a transition period: Ofcom expects that all services currently in scope of the VSP regime will also be in scope of the online safety regime; when the Bill comes into force, all pre-existing, UK-established VSPs (in other words, platforms that meet the scope and jurisdiction criteria under Part 4B of the Communications Act 2003) will enter a transition period, during which, they will be exempt from having to comply with most duties under the Bill; they will still have some duties, such as complying with demands for information issued by Ofcom and notifying for fees; the transition period exemption will apply to platforms that meet the notification criteria when the Bill comes into force, expected to be two months after Royal Assent; Ofcom will no longer accept new notifications from VSPs after Royal Assent; if the platform is first provided on or after that date, it will instead be regulated under the online safety regime;
- Ofcom will continue to regulate UK-established platforms under the VSP regime: during the transition period, Ofcom will continue to regulate pre-existing, UK-established VSPs under the VSP regime as it will still have regulatory powers for this purpose; these continuing powers include the power to take enforcement action against any provider that fails to notify; if a VSP is a dissociable section (i.e. a separable part) of a larger service, another part of which qualifies as a regulated service under the Bill, then the exemption will only apply to the VSP part of the service; during the transition period, the non-VSP part of the service will be treated like any other regulated service in scope of the Bill;
- when the transition period ends, platforms will be regulated under the online safety regime: in secondary legislation, the Secretary of State for Science, Innovation and Technology will specify the date at which the VSP regime is repealed; the transition period will end on this date, following which, pre-existing, UK-established VSPs will be regulated under the online safety regime and duties under the new regime will apply in full; Ofcom will still have the power to continue any enforcement cases with VSPs that are ongoing at the date of repeal;
- regulated services will be charged from 2025-26 or later: regulated services with revenue at or above a set threshold are expected to be charged from the financial year 2025-26 or later, as long as they are not otherwise exempt; during the transition period, VSP-only providers, and providers for whom the VSP is a dissociable section of their service, will not have to pay fees in respect of VSP-only services, or the dissociable parts of their services that are VSPs, as applicable;
- the Government is deciding when exactly the VSP regime will be repealed: the date on which the VSP regime will be repealed will be set out by the Secretary of State in secondary legislation; the Bill requires the Secretary of State to give platforms at least six months’ notice of the repeal date; Ofcom will work closely with the Government to ensure that there is support for services when they move between the regimes;
- providers are to carry out risk assessments but deadlines are to be confirmed: the Secretary of State will also have powers to make secondary legislation to set out the timing for when VSP providers will need to conduct risk assessments and the child access assessment (CAA); VSPs will have at least three months to carry out each assessment, the same as other regulated services; the precise timing for when they will have to do this will depend on what assessment start date is specified in the secondary legislation and whether Ofcom has issued the applicable risk assessment or CAA guidance by the specified date; if the VSP is a dissociable section of a larger service, another part of which qualifies as a regulated service under the Bill, then the risk assessments and CAA for the non-VSP part will have to be carried out at the same time as for any other regulated service in scope of the online safety regime; and
- Ofcom will support VSP providers in moving to the online safety regime: as the Bill continues through Parliament, Ofcom will work closely with providers to help them understand when the transition and repeal will take place and what their obligations will be under the Online Safety Bill.
To read Ofcom’s information note in full, click here.