Is the Bill future proofed?

The regime seeks to be dynamic and there are specific measures in place at key points that seek to ensure it remains up to date.  For instance, risk assessments are required to be kept up to date[1], including when there is a significant change in their service. Companies are (for illegal content and content harmful to children) required to take note of issues raised with them that are harmful. As we have written at Carnegie UK, it seems likely that a user-to-user regime would encompass the metaverse – the Government should clarify that this is the case. There are two sets of questions arising: do the lists of measures in the safety duties seem appropriate for the dynamic, real-time environment that the metaverse is likely to be? Insofar as the harms in relation to which service providers must take action are described by reference to current criminal offences, is there a danger that those offences will themselves become outdated (consider a sexual assault on an avatar)? This more generally illustrates the difficulties of relying on lists of types of content in terms of keeping the regime relevant.

There is a process for reviewing whether new categories of content harmful to children and/or adults are needed.[2] However, this in the end requires a statutory instrument, which is cumbersome. In TV, radio advertising and cinema regulation, the regulator – based on research – can move independently of the executive to combat novel harms which fall within the more general category of harmful content (rather than a more detailed list of specific issues as here) it was tasked with tackling.

For harmful topics that are well understood, and new permutations of those, the system will stay up to date. There are questions though about its ability to cope with novel topic areas due to the constraints the government has chosen to put on OFCOM.

[1] For instance Clause 8 (3) and Clause 83 (9) Ofcom’s market risk assessment https://publications.parliament.uk/pa/bills/cbill/58-02/0285/210285.pdf

[2] Clause 56 https://publications.parliament.uk/pa/bills/cbill/58-02/0285/210285.pdf