Thousands of businesses will be affected by the Online Safety regime, which is currently in the final stages of consideration by the UK parliament. Until the Online Safety Bill is finalised and related guidance is released, we can't be sure about exactly how it will be implemented. 

Ofcom will be the statutory regulator under the new Online Safety regime and the UK government has previously acknowledged that there will be similarities with the Video Sharing Platform regime which came into effect in late 2020 (see our summaries on VSP regulation here and here). Some insight can therefore be gleaned in Ofcom's likely approach from what may well be the first regulatory action by Ofcom under the VSP regime.

VSPs include businesses that allow the public to upload videos to their platform, and the VSP regulations (which flowed down following amendments to the EU's Audio Visual Media Services Directive before Brexit) provide for stringent reporting requirements to ensure Ofcom can monitor that VSPs are complying with their varied obligations. It is proposed that these obligations will be largely superseded by similar obligations under the Online Safety regime.

There are only a handful of VSPs which currently fall under Ofcom's jurisdiction. However for the many many more businesses which will fall within the Online Safety regime, the £2000 fine issued to Tapnet Ltd (which operates the video-sharing platform RevealMe), is potentially very, well, revealing.

Since 1 November 2020, UK-established VSPs must comply with rules around protecting users from harmful videos. Ofcom is required to ensure that UK-based VSPs have appropriate measures in place to protect users from certain types of harmful material in videos. Last year, Ofcom issued some information requests to VSPs with the aim of helping it to understand and monitor the safety measures they have in place and to inform the VSP report it published in October.

VSPs are required by law to comply with a statutory demand for information from Ofcom. It says that the information gathered during this process is fundamental in enabling it to carry out its job as a regulator. It is therefore crucial that VSPs provide accurate and complete information in a timely fashion.

Tapnet did not provide the required information by the deadline, and following a formal investigation, Ofcom has confirmed that this failure breached the rules. In deciding the level of financial penalty, it took into account, among other things, the size of the company and the fact that the information was ultimately provided to Ofcom swiftly after it started its investigation.

This fine shows that Ofcom will take reporting failures seriously and will levy fines if it sees fit. However, it also illustrates that fines will be proportionate to the size of the business, in accordance with Ofcom's penalty guidelines. It seems likely that it will take a similar approach to platforms regulated under the Online Safety regime.