UK Government Watch

Three years after the UK's Online Safety Act received Royal Assent, no-one is happy and the air is thick with complaints.

Supporters say that implementation has been too slow, too cautious, and that the Act hasn't made any real difference. Enforcement is said to be a paper tiger: Ofcom is too risk-averse, interprets the Act too narrowly, doesn't have strong enough powers, or all three. Ofcom stands accused of failing to meet the expectations of Parliamentarians.

Critics of the Act complain (among many other things) of lack of clarity on scope, baked-in over-removal of user content, chilling effects on small low risk forums, privacy impacts, and overreaching age-gating of user content.

In parallel we have the forthcoming under-16 social media ban. That, according to the DCMS Minister in a recent e-petition debate, will capture user-to-user platforms whose purpose is to enable online interaction and which allow users to post material, alongside having an algorithm. The Culture Secretary has recently suggested that that might extend to online marketplaces with messaging functionality.

All this is taking place against a background of US political perception that UK and EU online safety laws are guilty of extraterritorial overreach.

Can the Online Safety Act be fixed?

See article from cyberleagle.com

Repressive new online safety measures have failed to limit the proportion of children suffering harm from social media, the UK's internet censor has admitted.

The proportion of children being fed unsafe content that often left them frightened, confused and upset, was almost unchanged, according to an Ofcom review of the first nine months of supposedly strict requirements on social media platforms such as TikTok and Instagram.

Under the Online Safety Act, the tech giants had to protect children from harmful content including pornography, serious violence, suicide material, racism, misogyny and bullying, with a series of specific duties introduced in summer 2025. But Ofcom found that at a total level there was no significant change in the proportion of children encountering harmful content over the first nine months after the children's safety duties came into force in July 2025. It called the finding concerning and said there was no evidence indicating a change in the severity of harm.

The regulator is already facing a wave of legal actions from tech companies challenging its powers including the Instagram operator Meta, as well as TikTok and X. It has warned it risks being absolutely clobbered legally by deep-pocketed individuals and firms.

Of course Ofcom has spun the abject failure as a reason for doubling down on censorship. The censor has proposed adding additional censorship rules banning content that makes children feel bad about their bodies or else somehow makes them feel unhappy (with the right think terminology  equivalencing this to mental health issues like depression).

From 6 November 2026, it will be a criminal offence in England and Wales to possess or publish pornographic images that explicitly and realistically depict:

• strangulation or suffocation

• penetrative sexual activity between people who a reasonable person would think are related, or pretending to be related, in a certain way. This includes depictions of close familial relatives such as father and daughter or brother and sister, and certain step and foster relationships where one person is, or is pretending to be, under 18

• sexual activity between at least 2 people where a reasonable person would think at least one person is, or is pretending to be, under 16

The offences only capture pornography that shows people which appear, to a reasonable person, to be real.

The maximum penalty for possession is:

• 2 years' imprisonment for pornography that depicts strangulation or suffocation, or penetrative sexual activity between certain relatives;

• 3 years' imprisonment for pornography depicting sexual activity involving a person who is, or is pretending to be, under 16

The maximum penalty for publication for all offences is 5 years' imprisonment.

There are defences available for these offences. For example, a person may have a defence to the possession and publication offences if they had not seen the image before and did not know, or have cause to suspect, that it was an image covered by the offences.

There is also a defence where the person who possesses or publishes the image directly participated in the act shown in the image and other criteria are met. For the possession offences, there is also a defence where a person was sent the image without asking for it (either themselves, or through a third party) and did not keep it for an unreasonable length of time.

The offences also attract a defence of legitimate reason for possessing or publishing the image.

What we mean by possession and publication

The term possess is not defined in the legislation and will be given its ordinary meaning. Whether a person possesses an image will be a question of fact for the court in each case. However, we consider that possessing an image will generally mean having custody or control of it. This could include where an image is stored on a device, retained in a personal account or cloud, saved in files, or otherwise kept physically or virtually.

Publish is defined in the offences to include giving or making an image available to another person by any means. This could include uploading, posting, sending, sharing or distributing an image. What we mean by strangulation and suffocation

The term strangulation is not defined in the legislation and will be given its ordinary meaning. Whether an image depicts strangulation will be a question of fact for the court in each case. We consider that strangulation generally means one person applying pressure to another person's neck.

The term suffocation is not defined in the legislation and will be given its ordinary meaning. Whether an image depicts suffocation will be a question of fact for the court in each case. We consider that suffocation will generally mean depriving a person of air in a way that affects their ability to breathe. Unlike strangulation, this does not require pressure to the neck. It could, for example, involve covering someone's mouth and nose or compressing their chest.

What you need to do before 6 November 2026

Possession is a continuing act. If you already possess an image covered by these offences, you will need to permanently delete it or otherwise get rid of it before 6 November 2026 to avoid committing an offence once the offences come into force.

Publication can also be a continuing act. If you have uploaded, posted or otherwise made an image covered by these offences available whether online or offline, you will need to remove it and stop making it available to others before 6 November 2026.

If you possess or are continuing to publish an image covered by these offences, you must stop doing so before they come into force. This means if you possess it, you need to permanently delete it or otherwise get rid of it before commencement. If you are continuing to publish it (whether online or offline), you need to remove it and stop publication before commencement.

The government has commissioned British Board of Film Censorship to test the feasibility of censoring online pornography for violent and abusive content.

The pilot by the BBFC will inform ministerial decisions on the most effective way to censor world wide websites potentially resulting in a formal online censor.

A government commissioned review by anti porn peer Gabby Bertin has resulted in new criminal offences for the publication and possession of certain types of online pornography, including strangulation, incest, step-incest and adults role-playing as children.

The laws will come into force by the 6th November. However Baroness Bertin said for the legislation to be effective there also needed to be more proactive regulation, including spot checking and auditing.

Bertin's review had suggested the BBFC audit websites, given its experience monitoring offline pornography for 40 years. They have previously raised concerns about the disparity between online and offline regulation and said they stand ready to expand their remit.

They were awarded a three-month contract for an Audit of Internet Services pilot in July. The pilot includes generating evidence on the availability of certain online pornographic content and evaluating how it could be monitored and reported on at scale given the huge size of the market.

Such a porn censor would need funding for staff to monitor content as well as new technology. Baroness Bertin proposed a model where porn companies as well as social media companies and search engines pay for it.

Bertin suggested that users would appreciate a BBFC censored website saying:

You are then saying to users, we are tried and tested and if you come into our site you won't see illegal content.

She said as well as monitoring for illegal content, an auditor could draw up guidance to address the grey area of material that is not illegal but would be banned in the offline world. It could also do spot checks for age of performers and consent, and help bring down sites that are not behind an age gate or are showing illegal content - either through having its own statutory powers or working alongside Ofcom.

Ofcom has the power to fines sites that don't comply with new age verification requirements that came into force last year as part of the Online Safety Act, but Baroness Bertin said the system is too slow. It should also be noted that only a couple of websites have actually paid Ofcom fines.