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U.K. Statute Regulating Children?s Web Site Moderators

By IBLS Editor

From October 12, 2009, pursuant to a commencement order expanding Schedule 4 of the Safeguarding Vulnerable Groups Act 2006, organizations with interactive Web sites likely to be used mainly by children or vulnerable adults must ensure that staff moderating the sites are not barred from working with children or vulnerable adults. Moderation of Websites is not mandatory, but failure to moderate could increase liability if Websites cause harm. This is another measure implemented in the United Kingdom to protection children online.

The Safeguarding Vulnerable Groups Act 2006 provides that certain activities in relation to children and vulnerable adults are regulated. This is known as "regulated activity." Regulated activity is any activity which involves contact with children or vulnerable adults, whether it is paid or volunteer work.  Online services are defined as regulated activities under the Act. It will be a criminal offense for an organization to knowingly employ a barred person for a regulated role which involves:

(a) monitoring the content of matter which forms any part of the service;

(b) removing matter from, or preventing the addition of matter to, the service; or

(c) controlling access to, or use of, the service.

Current legislation and guidance from the U.K. Government and industry stops short of making moderation of services for children mandatory, but moderation is likely to reduce the potential liability of Website operators if a site causes harm to users. The list of persons barred from acting as moderators of interactive children Websites or sites accessed by vulnerable users can be checked through the U.K. Independent Safeguarding Authority (ISA), which works in partnership with the Criminal Records Bureau (CRB) to gather information on those who work with vulnerable people.

Following the 2002 murders of Jessica Chapman and Holly Wells by Ian Huntley, a school caretaker, the Bichard Inquiry was commissioned. One of the issues in this Inquiry was to know the way employers recruit people to work with children and vulnerable adults. It asked whether the way employers check the background of job applicants is reliable enough. It also asked whether employers should be responsible for deciding whether a job applicant can be safely employed. The Inquiry''''''''''''''''s recommendations led to the Safeguarding Vulnerable Groups Act 2006, which recognized the need for a single agency to vet all individuals who want to work or volunteer with vulnerable people. The ISA was created to fulfill this role across England, Wales and Northern Ireland. The ISA assesses every person who wants to work or volunteer with children or vulnerable adults. The CRB will receive applications to the ISA and will gather and monitor information. It will also use the information previously found in (1) the Protection of Vulnerable Adults (PoVA) list; (2) the Protection of Children Act (PoCA) list; and (3) List 99, a list of people considered unsuitable for work with children, held by the Department for Children, Schools and Families. The ISA will then assess this information and decide whether to give the individual concerned ISA registration or put them on one of the ISA Barred Lists.

It is a criminal offense for an employer to allow a barred person, or a person who is not yet registered with the ISA, to work for any length of time in any regulated activity, or to take on a person in a regulated activity if they fail to check that person"s status. Likewise, a barred individual may not take part in any regulated activity. An individual taking part in a regulated activity must be registered with the ISA. It will be a criminal offense for a barred person to take part in a regulated activity for any length of time.

Domestic employers (e.g. parents and caregivers) do not have to check that their employees are ISA-registered, but the 2009 scheme gave them the opportunity to check the status of an individual (with their consent) if they wish to do so. Yet, it will be an offense for a barred person to take part in any regulated activity in a domestic circumstance.

Is every employee who works with Websites covered?
Employees or volunteers with access to two-way communication with users are covered by the Act. Many Websites require registration involving provision of an e-mail address, allowing two-way communications. The new provisions may not prevent, for example, a barred person from providing technical support for a Website, unless they have access to content and contact with users.

Who will enforce the new provisions?
The Act established the ISA as a regulatory body rather than a law enforcement body. Therefore, in the absence of an express enforcement provision, it will be up to social services or the police to follow up on complaints. Any organization that knowingly employs a barred person to perform prohibited will be committing a criminal offense.

The ISA will not proactively regulate the law. It will be up to individuals to report potential offenders.

When will the law come into force?
The law entered into effect on October 12, 2009. It initially only applied to people filling new jobs in regulated areas. Over the following five years from 2009 it will extend to all roles connected with children and vulnerable adults on a phased basis. The Government has not yet published the phasing-in program.

Conclusion:
To avoid potential criminal liability, U.K. Website providers will need to check with the Independent Safeguarding Authority that moderators of sites used by children and vulnerable adults are not barred. The ISA works in association with the Criminal Records Bureau to vet those working in regulated activities involving young people and vulnerable adults, but it will not actively enforce the new law.

Full post as published by IBLS Internet Law Blog on February 18, 2010 (boomark / email).