New duties under the Online Safety Act: T&Cs children can understand

In an increasingly digital world, the safety of children online has become a paramount concern for many, with around 97% of children aged 3-17 reportedly being online in 2022 (and that figure will no doubt have increased since then). As a result, businesses operating digital platforms face a rapidly evolving regulatory landscape – with greater responsibilities in relation to online safety and accountability.

What is the Online Safety Act? 

The Online Safety Act (“the Act”) was introduced in 2023, and its provisions have been slowly brought into force over time since then (some of its provisions are still not in force). The Act is widely considered a landmark piece of legislation, placing new legal obligations and responsibilities on platforms and services which operate online. Its primary focus is on protecting young users from harmful content, invasive data practices and online manipulation.

The Act is designed to improve user safety online by holding service providers directly accountable for risks on their platforms. In particular, businesses that provide user-to-user messaging services and search engines must now implement appropriate measures to:

• Remove illegal material
• Reduce the risk of their services being used for illegal activity
• Prevent children from accessing harmful and age-inappropriate content

Child friendly terms and conditions now required

One notable new requirement introduced by the Act is the requirement for businesses who provide “user-to-user” services likely to be accessed by children (regardless of whether the service is targeted at children) to provide terms and conditions that children can understand - a significant development given children do not generally have capacity to enter into contracts. This requirement is not about enforceability, but about transparency, informed use and alignment with rules around children’s privacy, safety and best interests.

Under the Act, user-to-user services are online platforms where users can interact by sharing content, messaging or engaging in discussions. This includes social media platforms and messaging apps but contrary to popular belief, the Act is not limited to just the big tech companies. Its scope is broad and can apply to a multitude of businesses, including (but not limited to):

• Online marketplaces
• User-generated content sites
• Educational platforms
• Gaming companies
• Businesses hosting reviews, blogs or community spaces

If your platform allows users to post, comment, message or upload content and is likely to be accessed by children, then it is likely to fall within the scope of the Act, and will thus be required to provide terms and conditions that are easy for a child to understand.

What does “easy for a child to understand” mean and how can I comply?

Terms and conditions are notoriously dense, legalistic and full of jargon – often difficult for adults, let alone children to navigate. Ofcom, the designated regulator of the Act, has helpfully provided some guidance on how to make terms and conditions easy for children to understand.

Your terms should provide a clear, age-appropriate explanation of:

• What personal information is being collected from users and why
• How that data is used
• What behaviours are expected of users on the platform
• What risks or harmful content might be encountered
• What safety tools and reporting options are available

In practice, this means:

1. Using plain language: Avoid legal jargon and use everyday vocabulary suitable for different age groups.
2. Being transparent: Explain clearly what data is being collected, how it will be used and whether it will be shared with third parties (note that this may require changes to both privacy policies and to terms and conditions).
3. Including visual aids: Where appropriate, businesses should use illustrations to aid comprehension. It has even been suggested that interactive guides, including animations or videos, could be helpful when explaining concepts to children.
4. Using age-tiered content: Your terms and conditions should be easy to understand for the youngest users allowed to access the service without a parent or guardian. It may be appropriate to create different versions of your terms, tailored to different age groups, rather than using a single version aimed only at the youngest users.
5. Making terms easy to locate and use: Use headings, bullet points and hyperlinks to help users find relevant information more easily.

Enforcement and penalties

Ofcom has wide-ranging power to enforce compliance with the Act, hold platforms accountable and improve online safety standards. Some of Ofcom’s enforcement powers include:

• Fines and penalties: Companies that fail to meet their obligations can face substantial fines of up to £18 million or 10% of their global annual turnover, whichever is higher. The aim is to hit non-compliant companies where it hurts - their bottom line.
• Service restrictions: In serious or repeated cases of non-compliance, Ofcom can impose business disruption measures. These could include restricting access to a platform in the UK or preventing it from generating revenue, such as through advertising or subscriptions.
• Criminal liability for senior managers: The Act introduces new criminal offences for company executives who fail to cooperate with Ofcom’s information requests. In certain circumstances, senior managers could face prosecution, fines or even imprisonment for obstructing investigations or failing to ensure compliance.
• Audits and investigations: Ofcom can conduct in-depth audits and investigations into a company’s safety practices. It can require platforms to provide detailed internal documentation, including risk assessments, safety policies and decision-making processes.

How we can help

The Online Safety Act represents a profound shift in digital accountability for online service providers. Making your terms and conditions transparent, clear and easy to understand is vital for compliance. The sanctions for failure to comply are now so significant that this issue should be at the top of the agenda for leaders of all online service businesses within scope of the Act.

LCF Law’s commercial and digital team offers expert advice and practical solutions to help you meet your legal responsibilities. Contact department head James Sarjantson on 0113 201 0401 or ku.oc1780330909.fcl@1780330909nostn1780330909ajras1780330909j1780330909.

Thank you to Trainee Solicitor Megan Atkinson for drafting this article.

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