Ofcom open letter clarifies how Online Safety Act will apply to GenAI

On 8 November, Ofcom published an open letter to online service providers clarifying how the UK’s Online Safety Act (‘OSA’) will apply to generative AI and chatbots, following a number of concerning cases of their use.

As a brief reminder, the OSA has within its scope services which have the functionality for users: (i) to create and share content, or interact with each other (‘user-to-user services’); and (ii) to search multiple websites or databases (‘search services’). If such a service has the required ‘link with the UK’, as defined in the OSA, it will be regulated.

Ofcom’s open letter clarifies the extent to which GenAI tools and chatbots will be considered user-to-user services or search services. The headline points are:

• If users can share content created by a GenAI chatbot with other users, or multiple users can interact with a GenAI chatbot as part of a ‘group chat’, the relevant site/app will be a user-to-user service. 
• If users can create their own GenAI chatbot for others to use, the relevant site/app will be a user-to-user service and the content the chatbot generates will be regulated under the OSA. This includes where the chatbot mimics others or is submitted to a library for others to use later.
• If a GenAI tool enables the search of multiple websites or databases, such as by drawing on live search results in response to a prompt, it will be a search service.

Ofcom also took the opportunity to make it abundantly clear that content shared with other users on a site which is AI-generated, including where the content was ultimately not created on or using that site, is regulated under the OSA as any human-generated content shared with other users would be.

If you operate a service with these features, then the OSA may apply, and as we recently reported, deadlines for OSA compliance are fast approaching. As Ofcom urges in its open letter, services should therefore be preparing now: this includes starting to prepare illegal content risk assessments as the OSA duties on tackling illegal content are currently due to enter force next March.