Despite the obvious implications the Online Safety Bill has for intermediary liability, the concept appears to have shockingly little mention in the bill itself, the Online Harms White Paper and the Government’s response. Whilst OFCOM prepare themselves for what is sure to be an overwhelming extension of their current duties, it is necessary to ask what intermediaries new duties’ are under the proposed regime, as well as the implications this has on the existing concept of intermediary liability.

The previous regime, enshrined in the E-Commerce Directive, only required intermediaries to take down unlawful content once they were made aware of it. The new bill, however, noticeably imposes a much wider range of duties on intermediaries. For example, intermediaries could be required to carry out “illegal content risk assessments” as well as “children’s risk assessments” as part of their wider duty to minimise the presence of illegal content on their platforms. The more notable and arguably more stifling aspect of the OSB is that content which may be harmful to children has entered the regulatory fold, with specific legal duties to prevent and review the risk of this happening. This departs from the previous regime in which only illegal content, including terrorism-related, child sexual abuse, threats of violence and IP infringement was subject to criminal and civil law, whilst ‘harmful’ material was regulated largely by the intermediaries’ own terms of service.

Although these new duties could transform the internet into a much safer place, and arguably brings into law responsibilities that intermediaries should have already factored in to the provision of their services, it is undeniable that it produces an immense burden for intermediaries. From a recent CJEU judgment it would appear that the UK is setting a standard for intermediaries that is contrary to the E-Commerce Directive, and that the CJEU would be unwilling to impose. As the protections afforded to intermediaries by the E-Commerce Directive and by the historically lower bar for intermediary liability seek to guarantee the right of intermediaries to provide services without having to jump through an excessive number of legislative hoops, it is no wonder that some have suggested the Online Safety Bill could have the effect of stifling technological innovation.