What Is ‘Illegal Content’ and What Are the Key Duties Under the Online Safety Act?

By: Claire Wiseman & James Balfour (Herbert Smith Freehills)

As part of Ofcom’s phased approach and roadmap for implementing the Online Safety Act 2023 (OSA), Phase 1 prioritizes duties related to illegal content and associated harms.

In this second installment of our ‘Your Questions Answered’ series on the OSA, we explore:

• how the OSA defines illegal content;
• the key duties under the OSA regarding illegal content; and
• how these duties differ based on the size and risk profile of regulated providers.

For the purposes of this and subsequent chapters, the term ‘regulated provider’ refers collectively to all online service providers falling within the scope of the OSA. For details on which services are covered, refer to Chapter 1.

The information in Chapter 2 draws primarily from the OSA, along with the draft Illegal Content Codes of Practice and accompanying guidance published on 9 November 2023 as part of Ofcom’s consultation on Protecting People from Illegal Harms Online (referred to hereafter as the illegal harms consultation).

As of this writing, Ofcom plans to finalize the Illegal Content Codes of Practice in Q4 2024, aiming for them to take effect by the end of Q1 2025. However, these timelines may shift following the recent change in government.

What is ‘Illegal Content’?

The term illegal content is defined under Section 59 of the OSA.

Content—including text, images, speech, or sounds—is considered illegal if its use, possession, viewing, access, publication, or dissemination constitutes a relevant offence under the law…

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