The Children’s Code and The Online Safety Bill

By Claire Jowett

With 71% of 5-15 year olds playing video games in 2020, the need for businesses in the video games industry to ensure children are able to use their services and products safely is paramount.

Two new legal frameworks to safeguard children in digital spaces, The Children’s Code and the Online Safety Bill, will affect the way in which online games businesses operate.

The Children’s Code

The Information Commissioner’s Office (ICO) introduced the Age Appropriate Design Code, also known as ‘The Children’s Code’ (‘the Code’), in September 2020 with a 12 month transitioning period for organisations to comply.  As of 2 September 2021 the ICO is able to look at the Children’s Code when considering whether an organisation has complied with its data protection obligations under the Data Protection Act 2018. As the Children’s Code applies to ‘information society services’ which are ‘likely to be accessed by children’, the scope of the Code is far-reaching with many businesses yet to realise that they fall within the Code’s remit.

The Code’s purpose is to protect children within the digital world rather than limit their usage of it and ‘set a benchmark for the appropriate protection of children’s personal data’. The Code seeks to do this by setting 15 standards to be considered by businesses which fall under the Code’s remit when designing and developing online services. An additional feature of the Code is that not only do businesses have to consider whether children are likely to access their services, but they must also consider what the likely age/s of those children are. This will govern the way in which the 15 standards are applied.

The application of the Code to online games services is substantial as it could apply to games available through apps, games downloaded to mobiles and devices, as well as games streamed online, regardless whether these are paid for or not, provided that these services are processing children’s personal data.

A significant challenge for businesses in the games sector will be determining the age of children accessing online games.

In determining the age of children accessing these services, it is unlikely that self-declaration of a user’s age will be sufficient to accurately determine their actual age, making the onus on games businesses incredibly high.

Failure to comply with the code may attract fines of up to 4% of an organisation’s global group turnover or £17.5million, whichever is greater. Such fines will be applicable regardless of the size of the business. From large tech corporations to start-ups in the creative industries and interactive media sector, these sanctions could have a substantial impact.

Although the ICO has created The Children’s Code Hub for organisations to use to assist them to comply and have annexed to the Code a flowchart to be used to determine whether the Code applies to them, the Code is extensive and wide-ranging in its implications making navigation potentially challenging.

A number of other countries are in the process of adopting similar legislation and therefore, in addition to the UK legislation, compliance with such legislation in the global market will be a requirement for businesses in the near future.

The Online Safety Bill

Following its announcement in the Queen’s Speech earlier this year, the UK Government’s Online Safety Bill (‘the Bill’), previously referred to as the Online Harms Bill, was published on 12 May 2021. Through the Bill, the government hopes to set itself and the UK apart as a “global leadership with our groundbreaking laws to usher in a new age of accountability for tech and bring fairness and accountability to the online world.”

In its current form, the Bill will apply to all digital platform operators whose services host user-generated content or facilitate public or private online interaction between users where one or more of the users are based in the UK. The aim of the draft legislation is to impose a duty of care upon digital service creators and providers to moderate user-generated content so as to prevent the exposure of illegal and/or harmful material to others, particularly children.

The Bill confirms Ofcom as the body regulating compliance with the proposed legislation. Through the Bill, Ofcom will have powers to impose fines of up to £18million or 10% of global turnover, highlighting the seriousness with which non-compliance is to be dealt with. Ofcom will also have the power to block services being available in the UK. A new criminal offence will be introduced through the Bill to senior managers for their failure to improve online safety standards in the services their businesses offer.

Online games services that facilitate public or private interaction between users or host user-generated content will therefore be caught by the Bill. With user-to-user communication facilities common place in online video games, this will be a key feature to which the Online Safety Bill will apply. This is particularly so in light of Ofcom’s 2020/21 ‘Children and parents: media use and attitudes report’ which states that children communicating with others within games via instant messaging facilities or headsets increased in 2020 to 74% of children aged 8-15. In addition to this, the report states that although children were more likely to chat to people they knew, 22% of children communicated through games with people they did not know and only 42% of parents had rules in place regarding whom their children could play online games with or against.

The risk of children being exposed to age inappropriate or harmful material whilst playing games online is a real one and with the ever increasing rise of children making use of online games services, it is generally accepted that the implementation of  protections are necessary to ensure internet safety, especially for children.

The Bill still needs to be debated and approved by both Houses of Parliament before receiving Royal Assent and passed into law. The Bill is expected to come into force as an Act in 2022/2023 and so it would be prudent to for all businesses and organisations operating interactive websites will need to understand the Bill and the requirements in order to comply as soon as possible.

How Irwin Mitchell can help

Organisations and businesses will need to understand their obligations under both the Children’s Code and the Online Safety Bill in order to protect people, and in particular children, from financial, emotional and physical harms and in doing so manage risk for their business. Irwin Mitchell’s Commercial Team house experts in advising businesses in the creative industries and the games and interactive entertainment sector who can assist with navigating the complexities of these legislative frameworks. For advice regarding compliance with the Children’s Code, the Online Safety Bill and the possible impact of either on your business, please contact Laura Harper and Claire Jowett.