Online Safety Act 2023

A bill to Make provision for and in connection with the regulation by OFCOM of certain internet services; for and in connection with communications offences; and for connected purposes.

Part 1 Introduction¶

1 Overview of Act¶

(1) Parts 2 to 9⁸ and 11 and 12 of this Act contain provision about the regulation by OFCOM of certain internet services.

(2) Part 2 contains key definitions, including the definition of a user-to-user service, a search service, a Part 3 service and a regulated service.

(3) Part 3 imposes duties of care on providers of user-to-user services and search services and requires OFCOM to issue codes of practice about those duties.

(4) Part 4 imposes further duties on providers of user-to-user services and search services.

(5) Part 5 imposes duties on providers of internet services (including user-to-user services and search services) that publish certain pornographic content.

(6) Part 6, which imposes requirements to pay fees to OFCOM, applies to providers of internet services to which the duties in Part 3, 4 or 5 apply (“regulated services”).

(7) Part 7 is about OFCOM’s powers and duties in relation to regulated services (including powers to obtain information and enforcement powers).

(8) Part 8 is about appeals and complaints relating to regulated services.

(9) Part 9 is about the Secretary of State’s functions in relation to regulated services.

(10) Part 10 contains communications offences.

(11) Parts 11 and 12 contain supplementary provisions including an index of terms defined in this Act (see section 190).

Part 2 Key definitions¶

2 “User-to-user service” and “search service”¶

(1) In this Act “user-to-user service” means an internet service by means of which content that is generated directly on the service by a user of the service, or uploaded to or shared on the service by a user of the service, may be encountered by another user, or other users, of the service.

(2) For the purposes of subsection (1)—

(a) it does not matter if content is actually shared with another user or users as long as a service has a functionality that allows such sharing;

(b) it does not matter what proportion of content on a service is content described in that subsection.

(3) For the meaning of “content” and “encounter”, see section 189.

(4) In this Act “search service” means an internet service that is, or includes, a search engine (see section 183).

(5) Subsections (6) and (7) have effect to determine whether an internet service that—

(a) is of a kind described in subsection (1), and

(b) includes a search engine,

is a user-to-user service or a search service for the purposes of this Act.

(6) It is a search service if the only content described in subsection (1) that is enabled by the service is content of any of the following kinds—

(a) content mentioned in paragraph 1, 2 or 3 of Schedule 1 (emails, SMS and MMS messages, one-to-one live aural communications) and related identifying content;

(b) content arising in connection with any of the activities described in paragraph 4(1) of Schedule 1 (comments etc on provider content);

(c) content present on a part of the service in relation to which the conditions in paragraph 7(2) of Schedule 1 are met (internal business service conditions).

(7) Otherwise, it is a user-to-user service.

3 “Regulated service”, “Part 3 service” etc¶

(1) This section applies for the purposes of this Act.

(2) A user-to-user service is a “regulated user-to-user service”, and a search service is a “regulated search service”, if the service—

(a) has links with the United Kingdom (see subsections (5) and (6)), and

(b) is not—

(i) a service of a description that is exempt as provided for by Schedule 1, or

(ii) a service of a kind described in Schedule 2 (services combining user-generated content or search content not regulated by this Act with pornographic content that is regulated).

(3) “Part 3 service” means a regulated user-to-user service or a regulated search service.

(4) “Regulated service” means—

(a) a regulated user-to-user service,

(b) a regulated search service, or

(c) an internet service, other than a regulated user-to-user service or a regulated search service, that is within section 67(2) (including a service of a kind described in Schedule 2).

(5) For the purposes of subsection (2), a user-to-user service or a search service “has links with the United Kingdom” if—

(a) the service has a significant number of United Kingdom users, or

(b) United Kingdom users form one of the target markets for the service (or the only target market).

(6) For the purposes of subsection (2), a user-to-user service or a search service also “has links with the United Kingdom” if—

(a) the service is capable of being used in the United Kingdom by individuals, and

(b) there are reasonable grounds to believe that there is a material risk of significant harm to individuals in the United Kingdom presented by—

(i) in the case of a user-to-user service, user-generated content present on the service or (if the service includes a search engine) search content of the service;

(ii) in the case of a search service, search content of the service.

(7) A regulated user-to-user service that includes a public search engine is referred to in this Act as a “combined service”.

“Public search engine” means a search engine other than one in relation to which the conditions in paragraph 7(2) of Schedule 1 (internal business service conditions) are met.

(8) In this section—

“search content” has the same meaning as in Part 3 (see section 51);

“user-generated content” has the meaning given by section 49 (see subsections (3) and (4) of that section).

4 Disapplication of Act to certain parts of services¶

(1) This Act does not apply in relation to a part of a Part 3 service if the conditions in paragraph 7(2) of Schedule 1 (internal business service conditions) are met in relation to that part.

(2) This Act does not apply in relation to a part of a regulated search service if—

(a) the only user-generated content enabled by that part of the service is content of any of the following kinds—

(i) content mentioned in paragraph 1, 2 or 3 of Schedule 1 (emails, SMS and MMS messages, one-to-one live aural communications) and related identifying content;

(ii) content arising in connection with any of the activities described in paragraph 4(1) of Schedule 1 (comments etc on provider content); and

(b) no regulated provider pornographic content is published or displayed on that part of the service.

(3) In this section—

“regulated provider pornographic content” and “published or displayed” have the same meaning as in Part 5 (see section 66);

“user-generated content” has the meaning given by section 49 (see subsections (3) and (4) of that section).

Part 3 Providers of regulated user-to-user services and regulated search services: duties of care¶

Chapter 1 Introduction¶

5 Overview of Part 3¶

(1) This Part imposes duties of care on providers of regulated user-to-user services and regulated search services and requires OFCOM to issue codes of practice relating to some of those duties.

(2) Chapter 2 imposes duties of care on providers of regulated user-to-user services in relation to content and activity on their services.

(3) Chapter 3 imposes duties of care on providers of regulated search services in relation to content and activity on their services.

(4) Chapter 4 imposes duties on providers of regulated user-to-user services and regulated search services to assess whether a service is likely to be accessed by children.

(5) Chapter 5 imposes duties on providers of certain regulated user-to-user services and regulated search services relating to fraudulent advertising.

(6) Chapter 6 requires OFCOM to issue codes of practice relating to particular duties and explains what effects the codes of practice have.

(7) Chapter 7 is about the interpretation of this Part, and it includes definitions of the following key terms—

“illegal content”, “terrorism content”, “CSEA content” and “priority illegal content” (see section 52);

“primary priority content that is harmful to children”, “priority content that is harmful to children” and “content that is harmful to children” (see section 53);

“priority content that is harmful to adults” and “content that is harmful to adults” (see section 54);

“search content” (see section 51).

Chapter 2 Providers of user-to-user services: duties of care¶

User-to-user services: which duties apply, and scope of duties¶

6 Providers of user-to-user services: duties of care¶

(1) Subsections (2) to (6)⁵ apply to determine which of the duties set out in this Chapter (and, in the case of combined services, Chapter 3) must be complied with by providers of regulated user-to-user services.

(2) All providers of regulated user-to-user services must comply with the following duties in relation to each such service which they provide—

(a) the duties about illegal content risk assessments set out in section 8,

(b) the duties about illegal content set out in section 9,

(d) the duties about complaints procedures set out in section 18,

(e) the duties about freedom of expression and privacy set out in section 19(2), (3) and (4), and

(f) the duties about record-keeping and review set out in section 20.

(3) Additional duties must be complied with by providers of particular kinds of regulated user-to-user services, as follows.

(4) All providers of regulated user-to-user services that are likely to be accessed by children must comply with the following duties in relation to each such service which they provide—

(a) the duties about children’s risk assessments set out in section 10, and

(b) the duties to protect children’s online safety set out in section 11.

(5) All providers of Category 1 services must comply with the following duties in relation to each such service which they provide—

(a) the duties about adults’ risk assessments set out in section 12,

(b) the duties to protect adults’ online safety set out in section 13,

(d) the duties to protect content of democratic importance set out in section 15,

(e) the duties to protect journalistic content set out in section 16, and

(f) the duties about freedom of expression and privacy set out in section 19(5), (6) and (7).

(6) All providers of combined services must comply with the following duties in relation to the search engine of each such service which they provide—

(a) if the service is not likely to be accessed by children, the duties set out in Chapter 3 referred to in section 21(2);

(b) if the service is likely to be accessed by children, the duties set out in Chapter 3 referred to in section 21(2) and (3).

(7) For the meaning of “likely to be accessed by children”, see section 33.

(8) For the meaning of “Category 1 service”, see section 81 (register of categories of services).

7 Scope of duties of care¶

(1) A duty set out in this Chapter which must be complied with in relation to a user-to-user service that includes regulated provider pornographic content does not extend to—

(a) the regulated provider pornographic content, or

(b) the design, operation or use of the service so far as relating to that content.

See Part 5 for the duties which relate to regulated provider pornographic content, and the meaning of that term.

(2) A duty set out in this Chapter which must be complied with in relation to a combined service does not extend to—

(a) the search content of the service,

(b) any other content that, following a search request, may be encountered as a result of subsequent interactions with internet services, or

(3) A duty set out in this Chapter which must be complied with in relation to a user-to-user service extends only to—

(a) the design, operation and use of the service in the United Kingdom, and

(b) in the case of a duty that is expressed to apply in relation to users of a service, the design, operation and use of the service as it affects United Kingdom users of the service.

Illegal content duties for all user-to-user services¶

8 Illegal content risk assessment duties¶

(1) This section sets out the duties about risk assessments which apply in relation to all regulated user-to-user services.

(2) A duty to carry out a suitable and sufficient illegal content risk assessment at a time set out in, or as provided by, Schedule 3.

(3) A duty to take appropriate steps to keep an illegal content risk assessment up to date, including when OFCOM make any significant change to a risk profile that relates to services of the kind in question.

(4) Before making any significant change to any aspect of a service’s design or operation, a duty to carry out a further suitable and sufficient illegal content risk assessment relating to the impacts of that proposed change.

(5) An “illegal content risk assessment” of a service of a particular kind means an assessment of the following matters, taking into account the risk profile that relates to services of that kind—

(a) the user base;

(b) the level of risk of individuals who are users of the service encountering the following by means of the service—

(i) each kind of priority illegal content (with each kind separately assessed), and

(ii) other illegal content,

taking into account (in particular) algorithms used by the service, and how easily, quickly and widely content may be disseminated by means of the service;

(d) the level of risk of functionalities of the service facilitating the presence or dissemination of illegal content, identifying and assessing those functionalities that present higher levels of risk;

(e) the different ways in which the service is used, and the impact of such use on the level of risk of harm that might be suffered by individuals;

(f) the nature, and severity, of the harm that might be suffered by individuals from the matters identified in accordance with paragraphs (b) to (e)⁴;

(g) how the design and operation of the service (including the business model, governance, use of proactive technology, measures to promote users’ media literacy and safe use of the service, and other systems and processes) may reduce or increase the risks identified.

(6) In this section references to risk profiles are to the risk profiles for the time being published under section 83 which relate to the risk of harm to individuals presented by illegal content.

(7) See also—

(a) section 20(2) (records of risk assessments), and

(b) Schedule 3 (timing of providers’ assessments).

9 Safety duties about illegal content¶

(1) This section sets out the duties about illegal content which apply in relation to all regulated user-to-user services.

(2) A duty, in relation to a service, to take or use proportionate measures to effectively mitigate and manage the risks of harm to individuals, as identified in the most recent illegal content risk assessment of the service.

(3) A duty to operate a service using proportionate systems and processes designed to—

(a) prevent individuals from encountering priority illegal content by means of the service;

(b) minimise the length of time for which any priority illegal content is present;

(c) where the provider is alerted by a person to the presence of any illegal content, or becomes aware of it in any other way, swiftly take down such content.

(4) The duties set out in subsections (2) and (3) apply across all areas of a service, including the way it is operated and used as well as content present on the service, and (among other things) require the provider of a service to take or use measures in the following areas, if it is proportionate to do so—

(a) regulatory compliance and risk management arrangements,

(b) design of functionalities, algorithms and other features,

(d) policies on user access to the service or to particular content present on the service, including blocking users from accessing the service or particular content,

(e) content moderation, including taking down content,

(f) functionalities allowing users to control the content they encounter,

(g) user support measures, and

(h) staff policies and practices.

(5) A duty to include provisions in the terms of service specifying how individuals are to be protected from illegal content, addressing each paragraph of subsection (3), and (in relation to paragraphs (a) and (b)) separately addressing terrorism content, CSEA content (see section 52 and Schedule 6) and other priority illegal content.

(6) A duty to apply the provisions of the terms of service referred to in subsection (5) consistently in relation to content which the provider reasonably considers is illegal content or a particular kind of illegal content.

(7) A duty to include provisions in the terms of service giving information about any proactive technology used by a service for the purpose of compliance with a duty set out in subsection (2) or (3) (including the kind of technology, when it is used, and how it works).

(8) A duty to ensure that the provisions of the terms of service referred to in subsections (5) and (7) are clear and accessible.

(9) In determining what is proportionate for the purposes of this section, the following factors, in particular, are relevant—

(a) all the findings of the most recent illegal content risk assessment (including as to levels of risk and as to nature, and severity, of potential harm to individuals), and

(b) the size and capacity of the provider of a service.

(10) In this section “illegal content risk assessment” has the meaning given by section 8.

(11) See also, in relation to duties set out in this section, section 19 (duties about freedom of expression and privacy).

User-to-user services likely to be accessed by children¶

10 Children’s risk assessment duties¶

(1) This section sets out the duties about risk assessments which apply in relation to regulated user-to-user services that are likely to be accessed by children (in addition to the duties about risk assessments set out in section 8 and, in the case of services likely to be accessed by children which are Category 1 services, section 12).

(2) A duty to carry out a suitable and sufficient children’s risk assessment at a time set out in, or as provided by, Schedule 3.

(3) A duty to take appropriate steps to keep a children’s risk assessment up to date, including when OFCOM make any significant change to a risk profile that relates to services of the kind in question.

(4) Before making any significant change to any aspect of a service’s design or operation, a duty to carry out a further suitable and sufficient children’s risk assessment relating to the impacts of that proposed change.

(5) Where a children’s risk assessment of a service identifies the presence of non- designated content that is harmful to children, a duty to notify OFCOM of—

(a) the kinds of such content identified, and

(b) the incidence of those kinds of content on the service.

(6) A “children’s risk assessment” of a service of a particular kind means an assessment of the following matters, taking into account the risk profile that relates to services of that kind—

(a) the user base, including the number of users who are children in different age groups;

(b) the level of risk of children who are users of the service encountering the following by means of the service—

(i) each kind of primary priority content that is harmful to children (with each kind separately assessed),

(ii) each kind of priority content that is harmful to children (with each kind separately assessed), and

(iii) non-designated content that is harmful to children,

giving separate consideration to children in different age groups, and taking into account (in particular) algorithms used by the service and how easily, quickly and widely content may be disseminated by means of the service;

(c) the level of risk of harm to children presented by different kinds of content that is harmful to children, giving separate consideration to children in different age groups;

(d) the level of risk of harm to children presented by content that is harmful to children which particularly affects individuals with a certain characteristic or members of a certain group;

(e) the level of risk of functionalities of the service facilitating the presence or dissemination of content that is harmful to children, identifying and assessing those functionalities that present higher levels of risk, including functionalities—

(i) enabling adults to search for other users of the service (including children), and

(ii) enabling adults to contact other users (including children) by means of the service;

(f) the different ways in which the service is used, and the impact of such use on the level of risk of harm that might be suffered by children;

(g) the nature, and severity, of the harm that might be suffered by children from the matters identified in accordance with paragraphs (b) to (f)⁵, giving separate consideration to children in different age groups;

(h) how the design and operation of the service (including the business model, governance, use of proactive technology, measures to promote users’ media literacy and safe use of the service, and other systems and processes) may reduce or increase the risks identified.

(7) In this section references to risk profiles are to the risk profiles for the time being published under section 83 which relate to the risk of harm to children presented by content that is harmful to children.

(8) See also—

(a) section 20(2) (records of risk assessments), and

(b) Schedule 3 (timing of providers’ assessments).

11 Safety duties protecting children¶

(1) This section sets out the duties to protect children’s online safety which apply in relation to regulated user-to-user services that are likely to be accessed by children.

(2) A duty, in relation to a service, to take or use proportionate measures to effectively—

(a) mitigate and manage the risks of harm to children in different age groups, as identified in the most recent children’s risk assessment of the service, and

(b) mitigate the impact of harm to children in different age groups presented by content that is harmful to children present on the service.

(3) A duty to operate a service using proportionate systems and processes designed to—

(a) prevent children of any age from encountering, by means of the service, primary priority content that is harmful to children (for example, by using age verification, or another means of age assurance);

(b) protect children in age groups judged to be at risk of harm from other content that is harmful to children (or from a particular kind of such content) from encountering it by means of the service (for example, by using age assurance).

(a) regulatory compliance and risk management arrangements,

(b) design of functionalities, algorithms and other features,

(d) policies on user access to the service or to particular content present on the service, including blocking users from accessing the service or particular content,

(e) content moderation, including taking down content,

(f) functionalities allowing for control over content that is encountered, especially by children,

(g) user support measures, and

(h) staff policies and practices.

(5) A duty to include provisions in the terms of service specifying—

(a) how children of any age are to be prevented from encountering primary priority content that is harmful to children (with each kind of primary priority content separately covered);

(b) how children in age groups judged to be at risk of harm from priority content that is harmful to children (or from a particular kind of such content) are to be protected from encountering it, where they are not prevented from doing so (with each kind of priority content separately covered);

(c) how children in age groups judged to be at risk of harm from non- designated content that is harmful to children (or from a particular kind of such content) are to be protected from encountering it, where they are not prevented from doing so.

(6) A duty to apply the provisions of the terms of service referred to in subsection (5) consistently in relation to content which the provider reasonably considers is content that is harmful to children or a particular kind of content that is harmful to children.

(8) A duty to ensure that the provisions of the terms of service referred to in subsections (5) and (7) are clear and accessible.

(9) In determining what is proportionate for the purposes of this section, the following factors, in particular, are relevant—

(a) all the findings of the most recent children’s risk assessment (including as to levels of risk and as to nature, and severity, of potential harm to children), and

(b) the size and capacity of the provider of a service.

(10) So far as a duty set out in this section relates to non-designated content that is harmful to children, the duty is to be taken to extend only to addressing risks of harm from the kinds of such content that have been identified in the most recent children’s risk assessment (if any have been identified).

(11) References in subsections (3)(b) and (5)(b) and (c) to children in age groups judged to be at risk of harm from content that is harmful to children are references to children in age groups judged to be at risk of such harm as assessed by the provider of a service in the most recent children’s risk assessment of the service.

(12) The duties set out in subsections (3) and (5) are to be taken to extend only to content that is harmful to children where the risk of harm is presented by the nature of the content (rather than the fact of its dissemination).

(13) The duties set out in this section extend only to such parts of a service as it is possible for children to access.

(14) For the purposes of subsection (13), a provider is only entitled to conclude that it is not possible for children to access a service, or a part of it, if there are systems or processes in place (for example, age verification, or another means of age assurance) that achieve the result that children are not normally able to access the service or that part of it.

(15) In this section “children’s risk assessment” has the meaning given by section 10.

(16) See also, in relation to duties set out in this section, section 19 (duties about freedom of expression and privacy).

Category 1 services¶

12 Adults’ risk assessment duties¶

(1) This section sets out the duties about risk assessments which apply in relation to Category 1 services (in addition to the duties about risk assessments set out in section 8 and, in the case of Category 1 services likely to be accessed by children, section 10).

(2) A duty to carry out a suitable and sufficient adults’ risk assessment at a time set out in, or as provided by, Schedule 3.

(3) A duty to take appropriate steps to keep an adults’ risk assessment up to date, including when OFCOM make any significant change to a risk profile that relates to services of the kind in question.

(4) Before making any significant change to any aspect of a service’s design or operation, a duty to carry out a further suitable and sufficient adults’ risk assessment relating to the impacts of that proposed change.

(5) An “adults’ risk assessment” of a service of a particular kind means an assessment of the following matters, taking into account the risk profile that relates to services of that kind—

(a) the user base;

(b) the level of risk of adults who are users of the service encountering, by means of the service, each kind of priority content that is harmful to adults (with each kind separately assessed), taking into account (in particular) algorithms used by the service, and how easily, quickly and widely content may be disseminated by means of the service;

(d) the level of risk of harm to adults presented by priority content that is harmful to adults which particularly affects individuals with a certain characteristic or members of a certain group;

(e) the level of risk of functionalities of the service facilitating the presence or dissemination of priority content that is harmful to adults, identifying and assessing those functionalities that present higher levels of risk;

(f) the different ways in which the service is used, and the impact of such use on the level of risk of harm that might be suffered by adults;

(g) the nature, and severity, of the harm that might be suffered by adults from the matters identified in accordance with paragraphs (b) to (f)⁵;

(6) In this section references to risk profiles are to the risk profiles for the time being published under section 83 which relate to the risk of harm to adults presented by priority content that is harmful to adults.

(7) See also—

(a) section 20(2) (records of risk assessments), and

(b) Schedule 3 (timing of providers’ assessments).

13 Safety duties protecting adults¶

(1) This section sets out the duties to protect adults’ online safety which apply in relation to Category 1 services.

(2) A duty to summarise in the terms of service the findings of the most recent adults’ risk assessment of a service (including as to levels of risk and as to nature, and severity, of potential harm to adults).

(3) A duty to include provisions in the terms of service specifying, in relation to each kind of priority content that is harmful to adults that is to be treated in a way described in subsection (4), which of those kinds of treatment is to be applied.

(4) These are the kinds of treatment of content referred to in subsection (3)—

(a) taking down the content;

(b) restricting users’ access to the content;

(d) recommending or promoting the content.

(5) A duty to explain in the terms of service the provider’s response to the risks relating to priority content that is harmful to adults (as identified in the most recent adults’ risk assessment of the service), by reference to—

(a) any provisions of the terms of service included in compliance with the duty set out in subsection (3), and

(b) any other provisions of the terms of service designed to mitigate or manage those risks.

(6) If provisions are included in the terms of service in compliance with the duty set out in subsection (3), a duty to ensure that those provisions—

(a) are clear and accessible, and

(b) are applied consistently in relation to content which the provider reasonably considers is priority content that is harmful to adults or a particular kind of priority content that is harmful to adults.

(7) If the provider of a service becomes aware of any non-designated content that is harmful to adults present on the service, a duty to notify OFCOM of—

(a) the kinds of such content identified, and

(b) the incidence of those kinds of content on the service.

(8) In this section—

“adults’ risk assessment” has the meaning given by section 12;

“non-designated content that is harmful to adults” means content that is harmful to adults other than priority content that is harmful to adults.

(9) See also, in relation to duties set out in this section, section 19 (duties about freedom of expression and privacy).

14 User empowerment duties¶

(1) This section sets out the duties to empower adult users which apply in relation to Category 1 services.

(2) A duty to include in a service, to the extent that it is proportionate to do so, features which adult users may use or apply if they wish to increase their control over harmful content.

(3) The features referred to in subsection (2) are those which, if used or applied by a user, result in the use by the service of systems or processes designed to—

(a) reduce the likelihood of the user encountering priority content that is harmful to adults, or particular kinds of such content, by means of the service, or

(b) alert the user to the harmful nature of priority content that is harmful to adults that the user may encounter by means of the service.

(4) A duty to ensure that all features included in a service in compliance with the duty set out in subsection (2) are made available to all adult users.

(5) A duty to include clear and accessible provisions in the terms of service specifying which features are offered in compliance with the duty set out in subsection (2), and how users may take advantage of them.

(6) A duty to include in a service features which adult users may use or apply if they wish to filter out non-verified users.

(7) The features referred to in subsection (6) are those which, if used or applied by a user, result in the use by the service of systems or processes designed to—

(a) prevent non-verified users from interacting with content which that user generates, uploads or shares on the service, and

(b) reduce the likelihood of that user encountering content which non- verified users generate, upload or share on the service.

(8) In determining what is proportionate for the purposes of subsection (2), the following factors, in particular, are relevant—

(a) all the findings of the most recent adults’ risk assessment (including as to levels of risk and as to nature, and severity, of potential harm to adults), and

(b) the size and capacity of the provider of a service.

(9) In this section “non-verified user” means a user who has not verified their identity to the provider of a service (see section 57(1)).

(10) In this section references to features include references to functionalities and settings.

15 Duties to protect content of democratic importance¶

(1) This section sets out the duties to protect content of democratic importance which apply in relation to Category 1 services.

(2) A duty to operate a service using proportionate systems and processes designed to ensure that the importance of the free expression of content of democratic importance is taken into account when making decisions about—

(a) how to treat such content (especially decisions about whether to take it down or restrict users’ access to it), and

(b) whether to take action against a user generating, uploading or sharing such content.

(3) A duty to ensure that the systems and processes mentioned in subsection (2) apply in the same way to a wide diversity of political opinion.

(4) A duty to include provisions in the terms of service specifying the policies and processes that are designed to take account of the principle mentioned in subsection (2), including, in particular, how that principle is applied to decisions mentioned in that subsection.

(5) A duty to ensure that—

(a) the provisions of the terms of service referred to in subsection (4) are clear and accessible, and

(b) those provisions are applied consistently in relation to content which the provider reasonably considers is content of democratic importance.

(6) For the purposes of this section content is “content of democratic importance”, in relation to a user-to-user service, if—

(a) the content is—

(i) news publisher content in relation to that service, or

(ii) regulated user-generated content in relation to that service; and

(b) the content is or appears to be specifically intended to contribute to democratic political debate in the United Kingdom or a part or area of the United Kingdom.

(7) In this section, the reference to “taking action” against a user is to giving a warning to a user, or suspending or banning a user from using a service, or in any way restricting a user’s ability to use a service.

(8) For the meaning of “news publisher content” and “regulated user-generated content”, see section 49.

16 Duties to protect journalistic content¶

(1) This section sets out the duties to protect journalistic content which apply in relation to Category 1 services.

(2) A duty to operate a service using proportionate systems and processes designed to ensure that the importance of the free expression of journalistic content is taken into account when making decisions about—

(a) how to treat such content (especially decisions about whether to take it down or restrict users’ access to it), and

(b) whether to take action against a user generating, uploading or sharing such content.

(3) A duty, in relation to a decision by a provider to take down content or to restrict access to it, to make a dedicated and expedited complaints procedure available to a person who considers the content to be journalistic content and who is—

(a) the user who generated, uploaded or shared the content on the service, or

(b) the creator of the content (see subsections (12) and (13)).

(4) A duty to make a dedicated and expedited complaints procedure available to users of a service in relation to a decision by the provider of the service to take action against a user because of content generated, uploaded or shared by the user which the user considers to be journalistic content.

(5) A duty to ensure that—

(a) if a complaint about a decision mentioned in subsection (3) is upheld, the content is swiftly reinstated on the service;

(b) if a complaint about a decision mentioned in subsection (4) is upheld, the action against the user is swiftly reversed.

(6) A duty to include provisions in the terms of service specifying—

(a) by what methods content present on the service is to be identified as journalistic content;

(b) how the importance of the free expression of journalistic content is to be taken into account when making decisions mentioned in subsection (2);

(c) the policies and processes for handling complaints in relation to content which is, or is considered to be, journalistic content.

(7) A duty to ensure that—

(a) the provisions of the terms of service referred to in subsection (6) are clear and accessible, and

(b) those provisions are applied consistently in relation to content which the provider reasonably considers is journalistic content.

(8) For the purposes of this section content is “journalistic content”, in relation to a user-to-user service, if—

(a) the content is—

(i) news publisher content in relation to that service, or

(ii) regulated user-generated content in relation to that service;

(b) the content is generated for the purposes of journalism; and

(9) For the purposes of this section content is “UK-linked” if—

(a) United Kingdom users of the service form one of the target markets for the content (or the only target market), or

(b) the content is or is likely to be of interest to a significant number of United Kingdom users.

(10) In this section references to “taking action” against a user are to giving a warning to a user, or suspending or banning a user from using a service, or in any way restricting a user’s ability to use a service.

(11) In this section the reference to the “creator” of content is to be read in accordance with subsections (12) and (13).

(12) The creator of news publisher content is the recognised news publisher in question.

(13) The creator of content other than news publisher content is—

(a) an individual who—

(i) created the content, and

(ii) is in the United Kingdom; or

(b) an entity which—

(i) created the content, and

(ii) is incorporated or formed under the law of any part of the United Kingdom.

(14) For the meaning of “news publisher content”, “regulated user-generated content” and “recognised news publisher”, see sections 49 and 50.

Duties about content reporting and complaints procedures¶

17 Duty about content reporting¶

(1) This section sets out the duty about content reporting which applies in relation to all regulated user-to-user services.

(2) A duty to operate a service using systems and processes that allow users and affected persons to easily report content which they consider to be content of a kind specified below (with the duty extending to different kinds of content depending on the kind of service, as indicated by the headings).

All services¶

(3) Illegal content.

Services likely to be accessed by children¶

(4) Content that is harmful to children, present on a part of a service that it is possible for children to access.

Category 1 services¶

(5) Content that is harmful to adults.

Interpretation etc¶

(6) In this section “affected person” means a person, other than a user of the service in question, who is in the United Kingdom and who is—

(a) the subject of the content,

(b) a member of a class or group of people with a certain characteristic targeted by the content,

(c) a parent of, or other adult with responsibility for, a child who is a user of the service or is the subject of the content, or

(d) an adult providing assistance in using the service to another adult who requires such assistance, where that other adult is a user of the service or is the subject of the content.

(7) For the purposes of subsection (4), a provider is only entitled to conclude that it is not possible for children to access a service, or a part of it, if there are systems or processes in place (for example, age verification, or another means of age assurance) that achieve the result that children are not normally able to access the service or that part of it.

(8) See also, in relation to the duty set out in this section, section 19 (duties about freedom of expression and privacy).

18 Duties about complaints procedures¶

(1) This section sets out the duties about complaints procedures which apply in relation to all regulated user-to-user services.

(2) A duty to operate a complaints procedure in relation to a service that—

(a) allows for relevant kinds of complaint to be made (as set out under the headings below),

(b) provides for appropriate action to be taken by the provider of the service in response to complaints of a relevant kind, and

(3) A duty to include in the terms of service provisions which are easily accessible (including to children) specifying the policies and processes that govern the handling and resolution of complaints of a relevant kind.

All services¶

(4) The following kinds of complaint are relevant for all services—

(a) complaints by users and affected persons about content present on a service which they consider to be illegal content;

(b) complaints by users and affected persons if they consider that the provider is not complying with a duty set out in—

(i) section 9 (illegal content),

(ii) section 17 (content reporting), or

(iii) section 19(2), (3) or (4) (freedom of expression and privacy);

(c) complaints by a user who has generated, uploaded or shared content on a service if that content is taken down on the basis that it is illegal content;

(d) complaints by a user of a service if the provider has given a warning to the user, suspended or banned the user from using the service, or in any other way restricted the user’s ability to use the service, as a result of content generated, uploaded or shared by the user which the provider considers to be illegal content;

(e) complaints by a user who has generated, uploaded or shared content on a service if—

(i) the use of proactive technology on the service results in that content being taken down, given a lower priority in other users’ feeds or being otherwise restricted, and

(ii) the user considers that the proactive technology has been used in a way not contemplated by, or in breach of, the terms of service (for example, by affecting content not of a kind specified in the terms of service as a kind of content in relation to which the technology would operate).

Services likely to be accessed by children¶

(5) The following kinds of complaint are relevant for services that are likely to be accessed by children—

(a) complaints by users and affected persons about content, present on a part of a service that it is possible for children to access, which they consider to be content that is harmful to children;

(b) complaints by users and affected persons if they consider that the provider is not complying with a duty set out in section 11 (children’s online safety);

(c) complaints by a user who has generated, uploaded or shared content on a service if that content is taken down, or access to it is restricted, on the basis that it is content that is harmful to children;

(e) complaints by a user who is unable to access content because measures used to comply with a duty set out in section 11(3) have resulted in an incorrect assessment of the user’s age.

Category 1 services¶

(6) The following kinds of complaint are relevant for Category 1 services—

(a) complaints by users and affected persons about content present on a service which they consider to be content that is harmful to adults;

(b) complaints by users and affected persons if they consider that the provider is not complying with a duty set out in—

(i) section 13 (adults’ online safety),

(ii) section 14 (user empowerment),

(iii) section 15 (content of democratic importance),

(iv) section 16 (journalistic content), or

(v) section 19(5), (6) or (7) (freedom of expression and privacy);

Interpretation etc¶

(7) In this section “affected person” has the meaning given by section 17.

(8) For the purposes of subsection (5)(a), a provider is only entitled to conclude that it is not possible for children to access a service, or a part of it, if there are systems or processes in place (for example, age verification, or another means of age assurance) that achieve the result that children are not normally able to access the service or that part of it.

(9) See also, in relation to duties set out in this section, section 19 (duties about freedom of expression and privacy).

Cross-cutting duties¶

19 Duties about freedom of expression and privacy¶

(1) This section sets out the duties about freedom of expression and privacy which apply in relation to regulated user-to-user services as indicated by the headings.

All services¶

(2) When deciding on, and implementing, safety measures and policies, a duty to have regard to the importance of protecting users’ right to freedom of expression within the law.

(3) When deciding on, and implementing, safety measures and policies, a duty to have regard to the importance of protecting users from a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of a user-to-user service (including, but not limited to, any such provision or rule concerning the processing of personal data).

(4) A duty to include clear and accessible provisions in the terms of service informing users about their right to bring a claim for breach of contract if content which they generate, upload or share is taken down, or access to it is restricted, in breach of the terms of service.

Additional duties for Category 1 services¶

(5) A duty—

(a) when deciding on safety measures and policies, to carry out an assessment of the impact that such measures or policies would have on—

(i) users’ right to freedom of expression within the law, and

(ii) the privacy of users; and

(b) to carry out an assessment of the impact of adopted safety measures and policies on the matters mentioned in paragraph (a)(i) and (ii).

(6) A duty to—

(a) keep an impact assessment up to date, and

(b) publish impact assessments.

(7) A duty to specify in a publicly available statement the positive steps that the provider has taken in response to an impact assessment to—

(a) protect users’ right to freedom of expression within the law, and

(b) protect the privacy of users.

Interpretation¶

(8) In this section—

“impact assessment” means an impact assessment under subsection (5);

“safety measures and policies” means measures and policies designed to secure compliance with any of the duties set out in—

(a) section 9 (illegal content),

(b) section 11 (children’s online safety),

(d) section 17 (content reporting), or

(e) section 18 (complaints procedures).

(9) Any reference in this section to the privacy of users or steps taken to protect the privacy of users is to be construed in accordance with subsection (3).

20 Record-keeping and review duties¶

(1) This section sets out the record-keeping and review duties which apply in relation to all regulated user-to-user services.

(2) A duty to make and keep a written record, in an easily understandable form, of every risk assessment under section 8, 10 or 12.

(3) A duty to make and keep a written record of any measures taken or in use to comply with a relevant duty which—

(a) are described in a code of practice and recommended for the purpose of compliance with the duty in question, and

(b) apply in relation to the provider and the service in question.

In this section such measures are referred to as “applicable measures in a code of practice”.

(4) If alternative measures have been taken or are in use to comply with a relevant duty, a duty to make and keep a written record containing the following information—

(a) the applicable measures in a code of practice that have not been taken or are not in use,

(b) the alternative measures that have been taken or are in use,

(d) how the provider has complied with section 45(5) (freedom of expression and privacy).

(5) If alternative measures have been taken or are in use to comply with a duty set out in section 9(2) or (3) or 11(2) or (3), the record required under subsection (4) of this section must also indicate whether such measures have been taken or are in use in every area listed in subsection (4) of those sections in relation to which there are applicable measures in a code of practice.

(6) A duty to review compliance with the relevant duties in relation to a service—

(a) regularly, and

(b) as soon as reasonably practicable after making any significant change to any aspect of the design or operation of the service.

(7) OFCOM may provide that particular descriptions of providers of user-to-user services are exempt from any or all of the duties set out in this section, and may revoke such an exemption.

(8) OFCOM must publish details of any exemption or revocation under subsection (7), including reasons for the revocation of an exemption.

(9) In this section—

“alternative measures” means measures other than measures which are (in relation to the provider and the service in question) applicable measures in a code of practice;

“code of practice” means a code of practice published under section 42;

“relevant duties” means the duties set out in—

(a) section 9 (illegal content),

(b) section 11 (children’s online safety),

(d) section 14 (user empowerment),

(e) section 15 (content of democratic importance),

(f) section 16 (journalistic content),

(g) section 17 (content reporting), and

(h) section 18 (complaints procedures).

Chapter 3 Providers of search services: duties of care¶

Search services: which duties apply, and scope of duties¶

21 Providers of search services: duties of care¶

(1) Subsections (2) and (3) apply to determine which of the duties set out in this Chapter must be complied with by providers of regulated search services.

(2) All providers of regulated search services must comply with the following duties in relation to each such service which they provide—

(a) the duties about illegal content risk assessments set out in section 23,

(b) the duties about illegal content set out in section 24,

(d) the duties about complaints procedures set out in section 28,

(e) the duties about freedom of expression and privacy set out in section 29, and

(f) the duties about record-keeping and review set out in section 30.

(3) In addition, all providers of regulated search services that are likely to be accessed by children must comply with the following duties in relation to each such service which they provide—

(a) the duties about children’s risk assessments set out in section 25, and

(b) the duties to protect children’s online safety set out in section 26.

(4) For the meaning of “likely to be accessed by children”, see section 33.

22 Scope of duties of care¶

(1) A duty set out in this Chapter which must be complied with in relation to a search service extends only to—

(a) the search content of the service,

(b) the design, operation and use of the search engine in the United Kingdom, and

(c) in the case of a duty that is expressed to apply in relation to users of a service, the design, operation and use of the search engine as it affects United Kingdom users of the service.

(2) For the purposes of the application of this Chapter in relation to the search engine of a combined service (see section 6(6))—

(a) a duty set out in this Chapter which requires a matter to be included in a publicly available statement may be satisfied by including the matter in the terms of service;

(b) references in this Chapter (except in section 21) to a search service are to be read as references to the search engine;

(c) references in this Chapter (except in section 21) to the provider of a search service are to be read as references to the provider of the combined service.

Illegal content duties for all search services¶

23 Illegal content risk assessment duties¶

(1) This section sets out the duties about risk assessments which apply in relation to all regulated search services.

(2) A duty to carry out a suitable and sufficient illegal content risk assessment at a time set out in, or as provided by, Schedule 3.

(a) the level of risk of individuals who are users of the service encountering search content of the following kinds—

(i) each kind of priority illegal content (with each kind separately assessed), and

(ii) other illegal content,

taking into account (in particular) risks presented by algorithms used by the service, and the way that the service indexes, organises and presents search results;

(b) the level of risk of functionalities of the service facilitating individuals encountering search content that is illegal content, identifying and assessing those functionalities that present higher levels of risk;

(c) the nature, and severity, of the harm that might be suffered by individuals from the matters identified in accordance with paragraphs (a) and (b);

(d) how the design and operation of the service (including the business model, governance, use of proactive technology, measures to promote users’ media literacy and safe use of the service, and other systems and processes) may reduce or increase the risks identified.

(6) In this section references to risk profiles are to the risk profiles for the time being published under section 83 which relate to the risk of harm to individuals presented by illegal content.

(7) See also—

(a) section 30(2) (records of risk assessments), and

(b) Schedule 3 (timing of providers’ assessments).

24 Safety duties about illegal content¶

(1) This section sets out the duties about illegal content which apply in relation to all regulated search services.

(3) A duty to operate a service using proportionate systems and processes designed to minimise the risk of individuals encountering search content of the following kinds—

(a) priority illegal content;

(b) other illegal content that the provider knows about (having been alerted to it by another person or become aware of it in any other way).

(4) The duties set out in subsections (2) and (3) apply across all areas of a service, including the way the search engine is operated and used as well as search content of the service, and (among other things) require the provider of a service to take or use measures in the following areas, if it is proportionate to do so—

(a) regulatory compliance and risk management arrangements,

(b) design of functionalities, algorithms and other features relating to the search engine,

(d) content prioritisation,

(e) user support measures, and

(f) staff policies and practices.

(5) A duty to include provisions in a publicly available statement specifying how individuals are to be protected from search content that is illegal content.

(6) A duty to apply the provisions of the statement referred to in subsection (5) consistently in relation to search content which the provider reasonably considers is illegal content or a particular kind of illegal content.

(7) A duty to include provisions in a publicly available statement giving information about any proactive technology used by a service for the purpose of compliance with a duty set out in subsection (2) or (3) (including the kind of technology, when it is used, and how it works).

(8) A duty to ensure that the provisions of the publicly available statement referred to in subsections (5) and (7) are clear and accessible.

(9) In determining what is proportionate for the purposes of this section, the following factors, in particular, are relevant—

(a) all the findings of the most recent illegal content risk assessment (including as to levels of risk and as to nature, and severity, of potential harm to individuals), and

(b) the size and capacity of the provider of a service.

(10) In this section “illegal content risk assessment” has the meaning given by section 23.

(11) See also, in relation to duties set out in this section, section 29 (duties about freedom of expression and privacy).

Search services likely to be accessed by children¶

25 Children’s risk assessment duties¶

(1) This section sets out the duties about risk assessments which apply in relation to regulated search services that are likely to be accessed by children (in addition to the duties about risk assessments set out in section 23).

(2) A duty to carry out a suitable and sufficient children’s risk assessment at a time set out in, or as provided by, Schedule 3.

(5) A “children’s risk assessment” of a service of a particular kind means an assessment of the following matters, taking into account the risk profile that relates to services of that kind—

(a) the level of risk of children who are users of the service encountering search content of the following kinds—

(i) each kind of primary priority content that is harmful to children (with each kind separately assessed),

(ii) each kind of priority content that is harmful to children (with each kind separately assessed), and

(iii) non-designated content that is harmful to children,

giving separate consideration to children in different age groups, and taking into account (in particular) risks presented by algorithms used by the service and the way that the service indexes, organises and presents search results;

(b) the level of risk of children who are users of the service encountering search content that is harmful to children which particularly affects individuals with a certain characteristic or members of a certain group;

(c) the level of risk of functionalities of the service facilitating children encountering search content that is harmful to children, identifying and assessing those functionalities that present higher levels of risk;

(d) the nature, and severity, of the harm that might be suffered by children from the matters identified in accordance with paragraphs (a) to (c)³, giving separate consideration to children in different age groups;

(e) how the design and operation of the service (including the business model, governance, use of proactive technology, measures to promote users’ media literacy and safe use of the service, and other systems and processes) may reduce or increase the risks identified.

(6) In this section references to risk profiles are to the risk profiles for the time being published under section 83 which relate to the risk of harm to children presented by content that is harmful to children.

(7) See also—

(a) section 30(2) (records of risk assessments), and

(b) Schedule 3 (timing of providers’ assessments).

26 Safety duties protecting children¶

(1) This section sets out the duties to protect children’s online safety which apply in relation to regulated search services that are likely to be accessed by children.

(2) A duty, in relation to a service, to take or use proportionate measures to effectively—

(a) mitigate and manage the risks of harm to children in different age groups, as identified in the most recent children’s risk assessment of the service, and

(b) mitigate the impact of harm to children in different age groups presented by search content that is harmful to children.

(3) A duty to operate a service using proportionate systems and processes designed to—

(a) minimise the risk of children of any age encountering search content that is primary priority content that is harmful to children;

(b) minimise the risk of children in age groups judged to be at risk of harm from other content that is harmful to children (or from a particular kind of such content) encountering search content of that kind.

(a) regulatory compliance and risk management arrangements,

(b) design of functionalities, algorithms and other features relating to the search engine,

(d) content prioritisation,

(e) user support measures, and

(f) staff policies and practices.

(5) A duty to include provisions in a publicly available statement specifying how children are to be protected from search content of the following kinds—

(a) primary priority content that is harmful to children (with each kind of primary priority content separately covered),

(b) priority content that is harmful to children (with each kind of priority content separately covered), and

(6) A duty to apply the provisions of the statement referred to in subsection (5) consistently in relation to search content which the provider reasonably considers is content that is harmful to children or a particular kind of content that is harmful to children.

(8) A duty to ensure that the provisions of the publicly available statement referred to in subsections (5) and (7) are clear and accessible.

(9) In determining what is proportionate for the purposes of this section, the following factors, in particular, are relevant—

(a) all the findings of the most recent children’s risk assessment (including as to levels of risk and as to nature, and severity, of potential harm to children), and

(b) the size and capacity of the provider of a service.

(11) The reference in subsection (3)(b) to children in age groups judged to be at risk of harm from content that is harmful to children is a reference to children in age groups judged to be at risk of such harm as assessed by the provider of a service in the most recent children’s risk assessment of the service.

(12) The duties set out in subsection (3) are to be taken to extend only to content that is harmful to children where the risk of harm is presented by the nature of the content (rather than the fact of its dissemination).

(13) The duties set out in this section extend only to such parts of a service as it is possible for children to access.

(15) In this section “children’s risk assessment” has the meaning given by section 25.

(16) See also, in relation to duties set out in this section, section 29 (duties about freedom of expression and privacy).

Duties about content reporting and complaints procedures¶

27 Duty about content reporting¶

(1) This section sets out the duty about content reporting which applies in relation to all regulated search services.

(2) A duty to operate a service using systems and processes that allow users and affected persons to easily report search content which they consider to be content of a kind specified below (with the duty extending to content that is harmful to children depending on the kind of service, as indicated by the headings).

All services¶

(3) Illegal content.

Services likely to be accessed by children¶

(4) Content that is harmful to children.

Interpretation etc¶

(5) In this section “affected person” means a person, other than a user of the service in question, who is in the United Kingdom and who is—

(a) the subject of the content,

(b) a member of a class or group of people with a certain characteristic targeted by the content,

(c) a parent of, or other adult with responsibility for, a child who is a user of the service or is the subject of the content, or

(d) an adult providing assistance in using the service to another adult who requires such assistance, where that other adult is a user of the service or is the subject of the content.

(6) See also, in relation to the duty set out in this section, section 29 (duties about freedom of expression and privacy).

28 Duties about complaints procedures¶

(1) This section sets out the duties about complaints procedures which apply in relation to all regulated search services.

(2) A duty to operate a complaints procedure in relation to a service that—

(a) allows for relevant kinds of complaint to be made (as set out under the headings below),

(b) provides for appropriate action to be taken by the provider of the service in response to complaints of a relevant kind, and

(3) A duty to make the policies and processes that govern the handling and resolution of complaints of a relevant kind publicly available and easily accessible (including to children).

All services¶

(4) The following kinds of complaint are relevant for all services—

(a) complaints by users and affected persons about search content which they consider to be illegal content;

(b) complaints by users and affected persons if they consider that the provider is not complying with a duty set out in—

(i) section 24 (illegal content),

(ii) section 27 (content reporting), or

(iii) section 29 (freedom of expression and privacy);

(c) complaints by an interested person if the provider of a search service takes or uses measures in order to comply with a duty set out in section 24 that result in content relating to that interested person no longer appearing in search results or being given a lower priority in search results;

(d) complaints by an interested person if—

(i) the use of proactive technology on a search service results in content relating to that interested person no longer appearing in search results or being given a lower priority in search results, and

(ii) the interested person considers that the proactive technology has been used in a way not contemplated by, or in breach of, the provider’s policies on its use (for example, by affecting content not of a kind specified in those policies as a kind of content in relation to which the technology would operate).

Services likely to be accessed by children¶

(5) The following kinds of complaint are relevant for services that are likely to be accessed by children—

(a) complaints by users and affected persons about search content which they consider to be content that is harmful to children;

(b) complaints by users and affected persons if they consider that the provider is not complying with a duty set out in section 26 (children’s online safety);

(c) complaints by an interested person if the provider of a search service takes or uses measures in order to comply with a duty set out in section 26 that result in content relating to that interested person no longer appearing in search results or being given a lower priority in search results;

(d) complaints by a user who is unable to access content because measures used to comply with a duty set out in section 26(3) have resulted in an incorrect assessment of the user’s age.

Interpretation etc¶

(6) In this section—

“affected person” has the meaning given by section 27;

“interested person” has the meaning given by section 181(7).

(7) See also, in relation to duties set out in this section, section 29 (duties about freedom of expression and privacy).

Cross-cutting duties¶

29 Duties about freedom of expression and privacy¶

(1) This section sets out the duties about freedom of expression and privacy which apply in relation to all regulated search services.

(2) When deciding on, and implementing, safety measures and policies, a duty to have regard to the importance of protecting the rights of users and interested persons to freedom of expression within the law.

(3) When deciding on, and implementing, safety measures and policies, a duty to have regard to the importance of protecting users from a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of a search service (including, but not limited to, any such provision or rule concerning the processing of personal data).

(4) In this section—

“interested person” has the meaning given by section 181(7);

“safety measures and policies” means measures and policies designed to secure compliance with any of the duties set out in—

(a) section 24 (illegal content),

(b) section 26 (children’s online safety),

(d) section 28 (complaints procedures).

30 Record-keeping and review duties¶

(1) This section sets out the record-keeping and review duties which apply in relation to all regulated search services.

(2) A duty to make and keep a written record, in an easily understandable form, of every risk assessment under section 23 or 25.

(3) A duty to make and keep a written record of any measures taken or in use to comply with a relevant duty which—

(a) are described in a code of practice and recommended for the purpose of compliance with the duty in question, and

(b) apply in relation to the provider and the service in question.

In this section such measures are referred to as “applicable measures in a code of practice”.

(4) If alternative measures have been taken or are in use to comply with a relevant duty, a duty to make and keep a written record containing the following information—

(a) the applicable measures in a code of practice that have not been taken or are not in use,

(b) the alternative measures that have been taken or are in use,

(d) how the provider has complied with section 45(5) (freedom of expression and privacy).

(5) If alternative measures have been taken or are in use to comply with a duty set out in section 24(2) or (3) or 26(2) or (3), the record required under subsection (4) of this section must also indicate whether such measures have been taken or are in use in every area listed in subsection (4) of those sections in relation to which there are applicable measures in a code of practice.

(6) A duty to review compliance with the relevant duties in relation to a service—

(a) regularly, and

(b) as soon as reasonably practicable after making any significant change to any aspect of the design or operation of the service.

(7) OFCOM may provide that particular descriptions of providers of search services are exempt from any or all of the duties set out in this section, and may revoke such an exemption.

(8) OFCOM must publish details of any exemption or revocation under subsection (7), including reasons for the revocation of an exemption.

(9) In this section—

“alternative measures” means measures other than measures which are (in relation to the provider and the service in question) applicable measures in a code of practice;

“code of practice” means a code of practice published under section 42;

“relevant duties” means the duties set out in—

(a) section 24 (illegal content),

(b) section 26 (children’s online safety),

(d) section 28 (complaints procedures).

Chapter 4 Children's access assessments¶

31 Children’s access assessments¶

(1) In this Part, a “children’s access assessment” means an assessment of a Part 3 service—

(a) to determine whether it is possible for children to access the service or a part of the service, and

(b) if it is possible for children to access the service or a part of the service, to determine whether the child user condition is met in relation to the service or a part of the service.

(2) A provider is only entitled to conclude that it is not possible for children to access a service, or a part of it, if there are systems or processes in place (for example, age verification, or another means of age assurance) that achieve the result that children are not normally able to access the service or that part of it.

(3) The “child user condition” is met in relation to a service, or a part of a service, if—

(a) there is a significant number of children who are users of the service or of that part of it, or

(b) the service, or that part of it, is of a kind likely to attract a significant number of users who are children.

(4) For the purposes of subsection (3)—

(a) the reference to a “significant” number includes a reference to a number which is significant in proportion to the total number of United Kingdom users of a service or (as the case may be) a part of a service;

(b) whether the test in paragraph (a) of that subsection is met is to be based on evidence about who actually uses a service, rather than who the intended users of the service are.

(5) In this Chapter—

(a) references to children are to children in the United Kingdom;

(b) references to a part of a service do not include any part of a service that is not, or is not included in, a user-to-user part of a service or a search engine.

32 Duties about children’s access assessments¶

(1) A provider of a Part 3 service must carry out the first children’s access assessment at a time set out in, or as provided by, Schedule 3.

(2) Subsections (3) and (4) apply to a provider of a Part 3 service during any period when the service is not treated as likely to be accessed by children (see section 33).

(3) The provider must carry out children’s access assessments of the service not more than one year apart.

(4) The provider must carry out a children’s access assessment of the service—

(a) before making any significant change to any aspect of the service’s design or operation to which such an assessment is relevant,

(b) in response to evidence about reduced effectiveness of any systems or processes that are in place as mentioned in section 31(2), or

(5) If a person is the provider of more than one Part 3 service, children’s access assessments must be carried out for each service separately.

(6) Children’s access assessments must be suitable and sufficient for the purposes of this Part.

(7) A provider must make and keep a written record, in an easily understandable form, of every children’s access assessment.

33 Meaning of “likely to be accessed by children”¶

(1) For the purposes of this Part, a Part 3 service is to be treated as “likely to be accessed by children” in the following three cases (with the result that the duties set out in sections 10 and 11, or (as the case may be) sections 25 and 26, apply in relation to the service).

(2) The first case is where a children’s access assessment carried out by the provider of the service concludes that—

(a) it is possible for children to access the service or a part of it, and

(b) the child user condition is met in relation to—

(i) the service, or

(ii) a part of the service that it is possible for children to access.

This subsection is to be interpreted consistently with section 31.

(3) In that case, the service is to be treated as likely to be accessed by children from the date on which the children’s access assessment is completed.

(4) The second case is where the provider of the service fails to carry out the first children’s access assessment as required by section 32(1).

(5) In that case—

(a) the service is to be treated as likely to be accessed by children from the date by which the first children’s access assessment was required to have been completed (see Part 1 of Schedule 3), and

(b) the service is to continue to be treated as likely to be accessed by children by reason of subsection (4) until such time as the provider completes the first children’s access assessment of the service.

(6) The third case is where, following an investigation into a failure to comply with a duty set out in section 32, OFCOM determine that a service should be treated as likely to be accessed by children: see section 115(4) and (5).

(7) In that case, the service is to be treated as likely to be accessed by children from the date of, or specified in, the confirmation decision given to the provider of the service (as the case may be: see section 115(5)).

Chapter 5 Duties about fraudulent advertising¶

34 Duties about fraudulent advertising: Category 1 services¶

(1) A provider of a Category 1 service must operate the service using proportionate systems and processes designed to—

(a) prevent individuals from encountering content consisting of fraudulent advertisements by means of the service;

(b) minimise the length of time for which any such content is present;

(c) where the provider is alerted by a person to the presence of such content, or becomes aware of it in any other way, swiftly take down such content.

(2) A provider of a Category 1 service must include clear and accessible provisions in the terms of service giving information about any proactive technology used by the service for the purpose of compliance with the duty set out in subsection (1) (including the kind of technology, when it is used, and how it works).

(3) In relation to a Category 1 service, an advertisement is a “fraudulent advertisement” if—

(a) it is a paid-for advertisement (see section 189),

(b) it amounts to an offence specified in section 36 (construed in accordance with section 52: see subsections (3) and (9) of that section), and

(4) If a person is the provider of more than one Category 1 service, the duties set out in this section apply in relation to each such service.

(5) In determining what is proportionate for the purposes of this section, the following factors, in particular, are relevant—

(a) the nature, and severity, of potential harm to individuals presented by different kinds of fraudulent advertisement, and

(b) the degree of control a provider has in relation to the placement of advertisements on the service.

(6) In the case of a Category 1 service which is a combined service, the duties set out in this section do not extend to—

(a) fraudulent advertisements that may be encountered in search results of the service or, following a search request, as a result of subsequent interactions with internet services, or

(b) anything relating to the design, operation or use of the search engine.

But if the service is also a Category 2A service, the duties set out in section 35 apply as well as the duties set out in this section.

(7) The duties set out in this section extend only to the design, operation and use of a Category 1 service in the United Kingdom.

(8) For the meaning of “Category 1 service”, see section 81 (register of categories of services).

35 Duties about fraudulent advertising: Category 2A services¶

(1) A provider of a Category 2A service must operate the service using proportionate systems and processes designed to minimise the risk of individuals encountering content consisting of fraudulent advertisements in or via search results of the service.

(2) A provider of a Category 2A service must include clear and accessible provisions in a publicly available statement giving information about any proactive technology used by the service for the purpose of compliance with the duty set out in subsection (1) (including the kind of technology, when it is used, and how it works).

(3) In relation to a Category 2A service, an advertisement is a “fraudulent advertisement” if—

(a) it is a paid-for advertisement (see section 189), and

(b) it amounts to an offence specified in section 36 (construed in accordance with section 52: see subsections (3) and (9) of that section).

(4) The reference to encountering fraudulent advertisements “in or via search results” of a search service—

(a) is a reference to encountering fraudulent advertisements—

(i) in search results of the service, or

(ii) as a result of interacting with a paid-for advertisement in search results of the service (for example, by clicking on it);

(b) does not include a reference to encountering fraudulent advertisements as a result of any subsequent interactions with an internet service other than the search service.

(5) If a person is the provider of more than one Category 2A service, the duties set out in this section apply in relation to each such service.

(6) In determining what is proportionate for the purposes of this section, the following factors, in particular, are relevant—

(a) the nature, and severity, of potential harm to individuals presented by different kinds of fraudulent advertisement, and

(b) the degree of control a provider has in relation to the placement of advertisements on the service.

(7) The duties set out in this section extend only to the design, operation and use of a Category 2A service in the United Kingdom.

(8) For the meaning of “Category 2A service”, see section 81 (register of categories of services).

36 Fraud etc offences¶

(1) This section specifies offences for the purposes of this Chapter (see sections 34(3)(b) and 35(3)(b)).

(2) An offence under any of the following provisions of the Financial Services and Markets Act 2000—

(a) section 23 (contravention of prohibition on carrying on regulated activity unless authorised or exempt);

(b) section 24 (false claims to be authorised or exempt);

(3) An offence under any of the following provisions of the Fraud Act 2006—

(a) section 2 (fraud by false representation);

(b) section 4 (fraud by abuse of position);

(d) section 9 (participating in fraudulent business carried on by sole trader etc).

(4) An offence under any of the following provisions of the Financial Services Act 2012—

(a) section 89 (misleading statements);

(b) section 90 (misleading impressions).

(5) An offence of attempting or conspiring to commit an offence specified in subsection (2), (3) or (4).

(6) An offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) in relation to an offence specified in subsection (2), (3) or (4), or (in Scotland) inciting a person to commit such an offence.

(7) An offence of aiding, abetting, counselling or procuring the commission of an offence specified in subsection (2), (3) or (4), or (in Scotland) being involved art and part in the commission of such an offence.

Chapter 6 Codes of practice and guidance¶

Codes of practice¶

37 Codes of practice about duties¶

(1) OFCOM must prepare and issue a code of practice for providers of Part 3 services describing measures recommended for the purpose of compliance with duties set out in section 9 or 24 (illegal content) so far as relating to terrorism content.

(2) OFCOM must prepare and issue a code of practice for providers of Part 3 services describing measures recommended for the purpose of compliance with duties set out in section 9 or 24 (illegal content) so far as relating to CSEA content.

(3) OFCOM must prepare and issue one or more codes of practice for providers of Part 3 services describing measures recommended for the purpose of compliance with the relevant duties (except to the extent that measures for the purpose of compliance with such duties are described in a code of practice prepared under subsection (1) or (2)).

(4) OFCOM must prepare and issue a code of practice for providers of Category 1 services and providers of Category 2A services describing measures recommended for the purpose of compliance with the duties set out in Chapter 5 (fraudulent advertising).

(5) Where a code of practice under this section is in force, OFCOM may—

(a) prepare a draft of amendments of the code of practice;

(b) prepare a draft of a code of practice under subsection (1), (2), (3) or (4) as a replacement for a code of practice previously issued under the subsection in question;

(6) In the course of preparing a draft of a code of practice or amendments of a code of practice under this section, OFCOM must consult—

(a) the Secretary of State,

(b) persons who appear to OFCOM to represent providers of Part 3 services,

(d) persons who appear to OFCOM to represent the interests of children (generally or with particular reference to online safety matters),

(e) persons who appear to OFCOM to represent the interests of persons who have suffered harm as a result of content to which the code of practice is relevant,

(f) persons whom OFCOM consider to have relevant expertise in equality issues and human rights, in particular—

(i) the right to freedom of expression set out in Article 10 of the Convention, and

(ii) the right to respect for a person’s private and family life, home and correspondence set out in Article 8 of the Convention,

(g) the Information Commissioner,

(h) persons whom OFCOM consider to have expertise in public health, science or medicine that is relevant to online safety matters,

(i) persons whom OFCOM consider to have expertise in innovation, or emerging technology, that is relevant to online safety matters, and

(j) such other persons as OFCOM consider appropriate.

(7) In the course of preparing a draft of a code of practice or amendments to which this subsection applies, OFCOM must also consult persons whom OFCOM consider to have expertise in the enforcement of the criminal law and the protection of national security that is relevant to online safety matters.

(8) Subsection (7) applies to—

(a) a code of practice under subsection (1) and amendments of such a code,

(b) a code of practice under subsection (2) and amendments of such a code,

(c) a code of practice under subsection (3) that describes measures recommended for the purpose of compliance with duties set out in section 9 or 24 (illegal content),

(d) amendments of a code of practice under subsection (3), if and to the extent that those amendments relate to measures recommended for the purpose of compliance with duties set out in section 9 or 24, and

(e) a code of practice under subsection (4) and amendments of such a code.

(9) Subsections (6) and (7) are subject to section 44 (minor amendments of code of practice).

(10) In this section “the relevant duties” means the duties set out in—

(a) sections 9 and 24 (illegal content),

(b) sections 11 and 26 (children’s online safety),

(d) section 14 (user empowerment),

(e) section 15 (content of democratic importance),

(f) section 16 (journalistic content),

(g) sections 17 and 27 (content reporting), and

(h) sections 18 and 28 (complaints procedures).

38 Codes of practice: principles, objectives, content¶

Schedule 4 contains—

(a) provision about the principles OFCOM must consider when preparing codes of practice under section 37,

(b) the online safety objectives (and a power for the Secretary of State by regulations to revise those objectives),

(c) provision about the measures that may be described in codes of practice (including, in particular, constraints on the recommendation of the use of proactive technology), and

(d) other provision related to codes of practice.

39 Procedure for issuing codes of practice¶

(1) Where OFCOM have prepared a draft of a code of practice under section 37, they must submit the draft to the Secretary of State.

(2) Unless the Secretary of State intends to give a direction to OFCOM under section 40(1) in relation to the draft, the Secretary of State must, as soon as reasonably practicable, lay the draft before Parliament.

(3) If, within the 40-day period, either House of Parliament resolves not to approve the draft—

(a) OFCOM must not issue the code of practice in the form of that draft, and

(b) OFCOM must prepare another draft of the code of practice under section 37.

(4) If no such resolution is made within that period—

(a) OFCOM must issue the code of practice in the form of the draft laid before Parliament, and

(b) the code of practice comes into force at the end of the period of 21 days beginning with the day on which it is issued.

(5) In this section, “the 40-day period” means—

(a) if the draft is laid before both Houses of Parliament on the same day, the period of 40 days beginning with that day, or

(b) if the draft is laid before the Houses of Parliament on different days, the period of 40 days beginning with the later of those days.

(6) In calculating the 40-day period, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses of Parliament are adjourned for more than 4 days.

(7) This section applies in relation to a draft of amendments of a code of practice prepared under section 37 as it applies in relation to a draft of a code of practice prepared under that section.

(8) This section is subject to section 44 (minor amendments of codes of practice).

40 Secretary of State’s powers of direction¶

(1) The Secretary of State may direct OFCOM to modify a draft of a code of practice submitted under section 39(1) if the Secretary of State believes that modifications are required—

(a) for reasons of public policy, or

(b) in the case of a terrorism or CSEA code of practice, for reasons of national security or public safety.

(2) But if a draft of a terrorism or CSEA code of practice is submitted under section 39(1) following a review under section 43(2), the Secretary of State may only direct OFCOM to modify the draft if the Secretary of State believes that modifications are required for reasons of national security or public safety.

(3) If, following a review of a terrorism or CSEA code of practice under section 43(2), OFCOM submit a statement to the Secretary of State under section 43(3)(b) (“OFCOM’s review statement”), the Secretary of State may direct OFCOM to modify the code of practice if the Secretary of State believes that modifications are required for reasons of national security or public safety.

(4) A direction given under subsection (3)—

(a) must be given within the period of 45 days beginning with the day on which OFCOM’s review statement is submitted to the Secretary of State, and

(b) must make particular reference to OFCOM’s review statement.

(5) A direction given under this section—

(a) may not require OFCOM to include in a code of practice provision about a particular measure recommended to be taken or used by providers of Part 3 services, and

(b) must set out the Secretary of State’s reasons for requiring modifications, except in a case where the Secretary of State considers that doing so would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom.

(6) If the Secretary of State gives a direction under this section, OFCOM must, as soon as reasonably practicable—

(a) comply with the direction,

(b) submit to the Secretary of State a draft of the code of practice modified in accordance with the direction,

(i) (except in a case mentioned in subsection (5)(b)) details of the direction, and

(ii) details about how the draft has been revised in response to the direction, and

(d) inform the Secretary of State about modifications that OFCOM have made to the draft that are not in response to the direction (if there are any).

(7) The Secretary of State may give OFCOM one or more further directions requiring OFCOM to modify the draft of the code of practice.

(8) Such further directions may only be given for the reasons set out in subsection (1), (2) or (3) (as the case may be), and subsections (5) and (6) apply again in relation to such further directions.

(9) When the Secretary of State is satisfied that no further modifications to the draft are required, the Secretary of State must, as soon as reasonably practicable, lay before Parliament—

(a) the modified draft,

(b) any document submitted by OFCOM as mentioned in subsection (6)(c), and

(10) Before laying OFCOM’s review statement before Parliament, the Secretary of State may, with OFCOM’s agreement, remove or obscure information in the statement (whether by redaction or otherwise) in order to prevent the disclosure of matters that the Secretary of State considers would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom.

(11) This section applies in relation to a draft of amendments of a code of practice submitted under section 39(1) as it applies in relation to a draft of a code of practice submitted under that provision.

(12) In this section “terrorism or CSEA code of practice” means a code of practice under section 37(1) or (2).

41 Procedure for issuing codes of practice following direction under section 40¶

(1) This section sets out the procedure that applies where a draft of a code of practice is laid before Parliament under section 40(9).

(2) If the draft contains modifications made following a direction given under section 40(1)(a), the affirmative procedure applies.

(3) If the draft contains modifications made following a direction given under section 40(1)(b), (2) or (3), the negative procedure applies.

(4) The “affirmative procedure” is as follows—

(a) a code of practice in the form of the draft laid before Parliament must not be issued by OFCOM unless the draft has been approved by a resolution of each House of Parliament;

(b) if the draft is so approved, the code of practice comes into force at the end of the period of 21 days beginning with the day on which it is issued;

(5) The “negative procedure” is as follows—

(a) if, within the 40-day period, either House of Parliament resolves not to approve the draft—

(i) OFCOM must not issue the code of practice in the form of that draft, and

(ii) OFCOM must prepare another draft of the code of practice under section 37;

(b) if no such resolution is made within that period—

(i) OFCOM must issue the code of practice in the form of the draft laid before Parliament, and

(ii) the code of practice comes into force at the end of the period of 21 days beginning with the day on which it is issued.

(6) “The 40-day period” has the same meaning as in section 39 (see subsections (5) and (6) of that section).

(7) This section applies in relation to a draft of amendments of a code of practice laid before Parliament under section 40(9) as it applies in relation to a draft of a code of practice laid under that provision.

42 Publication of codes of practice¶

(1) OFCOM must publish each code of practice issued under section 39 or 41 within the period of three days beginning with the day on which it is issued.

(2) Where amendments of a code of practice are issued under either of those sections², OFCOM must publish the amended code of practice within the period of three days beginning with the day on which the amendments are issued.

(3) Where a code of practice is withdrawn, OFCOM must publish a notice to that effect.

43 Review of codes of practice¶

(1) OFCOM must keep under review each code of practice published under section 42.

(2) The Secretary of State may require OFCOM to review a terrorism or CSEA code of practice published under section 42 if the Secretary of State considers a review to be necessary for reasons of national security or public safety (and the Secretary of State must notify OFCOM whether the reasons fall into the category of national security or public safety).

(3) OFCOM must carry out a review of the code of practice under subsection (2) as soon as reasonably practicable, and when it is completed—

(a) if OFCOM consider that changes are required, they must prepare a draft of amendments to the code of practice or a draft of a replacement code of practice under section 37, or

(b) if OFCOM consider that no changes are required, they must submit to the Secretary of State a statement which explains the reasons for that conclusion.

(4) Subsection (5) applies if—

(a) OFCOM submit a statement under subsection (3)(b) to the Secretary of State,

(b) the period of 45 days beginning with the day on which the statement was submitted has elapsed, and

(5) OFCOM must publish the statement as soon as reasonably practicable after the end of the period mentioned in subsection (4)(b), making it clear which code of practice the statement relates to.

(6) In advance of publication, the Secretary of State may make representations to OFCOM about the desirability of removing or obscuring information in the statement (whether by redaction or otherwise) in order to prevent the disclosure of matters that the Secretary of State considers would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom (and see also section 99(3)).

(7) In this section “terrorism or CSEA code of practice” means a code of practice under section 37(1) or (2).

44 Minor amendments of codes of practice¶

(1) This section applies if—

(a) OFCOM propose to amend a code of practice under section 37, and

(b) OFCOM consider that the minor nature of the proposal means that—

(i) consultation is unnecessary, and

(ii) the proposed amendments should not be required to be laid before Parliament.

(2) OFCOM must notify the Secretary of State of the proposed amendments.

(3) If the Secretary of State agrees with OFCOM that it is appropriate—

(a) the consultation requirements set out in section 37(6) and (7) do not apply in relation to the proposed amendments, and

(b) section 39 does not apply to the amendments, once prepared.

(4) If the Secretary of State agrees with OFCOM as mentioned in subsection (3), OFCOM may prepare and issue the amendments of the code of practice.

(5) Amendments of a code of practice issued under this section come into force at the end of the period of 21 days beginning with the day on which the amendments are issued.

(6) Section 42(2) applies in relation to amendments of a code of practice issued under this section as it applies in relation to amendments of a code of practice issued under section 39 or 41.

45 Relationship between duties and codes of practice¶

Duties set out in Chapters 2 and 3¶

(1) A provider of a Part 3 service is to be treated as complying with a relevant duty if the provider takes or uses the measures described in a code of practice which are recommended for the purpose of compliance with the duty in question.

(2) A provider of a user-to-user service—

(a) is to be treated as complying with the duty set out in section 19(2) (freedom of expression) if the provider takes or uses such of the relevant recommended measures as incorporate safeguards to protect users’ right to freedom of expression within the law;

(b) is to be treated as complying with the duty set out in section 19(3) (privacy) if the provider takes or uses such of the relevant recommended measures as incorporate safeguards to protect the privacy of users.

(3) A provider of a search service—

(a) is to be treated as complying with the duty set out in section 29(2) (freedom of expression) if the provider takes or uses such of the relevant recommended measures as incorporate safeguards to protect the rights of users and interested persons to freedom of expression within the law;

(b) is to be treated as complying with the duty set out in section 29(3) (privacy) if the provider takes or uses such of the relevant recommended measures as incorporate safeguards to protect the privacy of users.

Duties set out in Chapter 5¶

(4) A provider of a Category 1 service or a Category 2A service (or a provider of a service which is both a Category 1 service and a Category 2A service) is to be treated as complying with a duty set out in Chapter 5 if the provider takes or uses the measures described in a fraudulent advertising code of practice which are recommended for the purpose of compliance with the duty in question.

Alternative measures¶

(5) A provider of a Part 3 service who seeks to comply with a relevant duty by acting otherwise than by taking or using a measure described in a code of practice or a fraudulent advertising code of practice which is recommended for the purpose of compliance with the duty must have regard to the importance of the following (where relevant)—

(a) protecting the right of users and (in the case of search services) interested persons to freedom of expression within the law, and

(b) protecting the privacy of users.

(6) When assessing whether a provider of a Part 3 service is compliant with a relevant duty where the provider has acted otherwise than by taking or using a measure described in a code of practice or a fraudulent advertising code of practice which is recommended for the purpose of compliance with the duty, OFCOM must consider the extent to which the alternative measures taken or in use by the provider—

(a) extend across all areas of a service as mentioned in section 9(4), 11(4), 24(4) or 26(4) (if relevant to the duty in question), and

(b) (where appropriate) incorporate safeguards for the protection of the matters mentioned in subsection (5)(a) and (b).

Interpretation¶

(7) In subsections (1) to (4)⁴, references to taking or using measures recommended for the purpose of compliance with a duty, or to taking or using relevant recommended measures, are to taking or using such of those measures as are relevant to the provider and the service in question.

(8) In this section—

(a) references to protecting the privacy of users are to protecting users from a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of a user-to-user service or search service (including, but not limited to, any such provision or rule concerning the processing of personal data);

(b) references to a search service include references to a combined service (see section 6(6)).

(9) In this section—

“Chapter 2 safety duty” means a duty set out in—

(a) section 9 (illegal content),

(b) section 11 (children’s online safety), or

“Chapter 3 safety duty” means a duty set out in—

(a) section 24 (illegal content), or

(b) section 26 (children’s online safety);

“code of practice” means a code of practice published under section 42, except a fraudulent advertising code of practice;

“fraudulent advertising code of practice” means a code of practice prepared under section 37(4) and published under section 42;

“relevant duty” means—

(a) a Chapter 2 safety duty,

(b) a Chapter 3 safety duty,

(d) a duty set out in section 15 (content of democratic importance),

(e) a duty set out in section 16 (journalistic content),

(f) a duty set out in section 17 or 27 (content reporting), or

(g) a duty set out in section 18 or 28 (complaints procedures);

“relevant recommended measures” means the measures described in a code of practice which are recommended for the purpose of compliance with—

(a) in the case of a user-to-user service, a Chapter 2 safety duty;

(b) in the case of a search service, a Chapter 3 safety duty.

46 Effects of codes of practice¶

(1) A failure by a provider of a Part 3 service to act in accordance with a provision of a code of practice does not of itself make the provider liable to legal proceedings in a court or tribunal.

(2) A code of practice is admissible in evidence in legal proceedings.

(3) In any proceedings in a court or tribunal, the court or tribunal must take into account a provision of a code of practice in determining a question arising in the proceedings if—

(a) the question relates to a time when the provision was in force, and

(b) the provision appears to the court or tribunal to be relevant to the question.

(4) OFCOM must take into account a provision of a code of practice in determining a question arising in connection with their exercise of any relevant function if—

(a) the question relates to a time when the provision was in force, and

(b) the provision appears to OFCOM to be relevant to the question.

(5) In this section—

“code of practice” means a code of practice published under section 42;

“relevant functions” means OFCOM’s functions under—

(a) Chapter 4 of Part 7 (information),

(b) Chapter 5 of Part 7 (notices to deal with terrorism content and CSEA content),

(d) Chapter 2 of Part 8 (super-complaints).

47 Duties and the first codes of practice¶

(1) A duty mentioned in subsection (3) applies to providers of Part 3 services from the day on which a code of practice prepared under section 37(3) that is the first code of practice relating to that duty comes into force.

(2) In the case of the duties set out in sections 9 and 24, subsection (1) is subject to subsections (5) and (6).

(3) The duties referred to in subsection (1) are the duties set out in—

(a) sections 9 and 24 (illegal content),

(b) sections 11 and 26 (children’s online safety),

(d) section 14 (user empowerment),

(e) section 15 (content of democratic importance),

(f) section 16 (journalistic content),

(g) sections 17 and 27 (content reporting), and

(h) sections 18 and 28 (complaints procedures).

(4) For the purposes of subsection (1) a code of practice is the first code of practice relating to a duty if—

(a) it describes measures recommended for the purpose of compliance with that duty, and

(b) it is the first code of practice prepared under section 37(3) that describes measures for that purpose.

(5) The duties set out in sections 9 and 24, so far as relating to terrorism content, apply to providers of Part 3 services from the day on which the first code of practice prepared under section 37(1) comes into force.

(6) The duties set out in sections 9 and 24, so far as relating to CSEA content, apply to providers of Part 3 services from the day on which the first code of practice prepared under section 37(2) comes into force.

(7) The duties set out in Chapter 5 (fraudulent advertising) apply to providers of a Category 1 service and providers of a Category 2A service (and to providers of a service which is both a Category 1 service and a Category 2A service) from the day on which the first code of practice prepared under section 37(4) comes into force.

(8) In relation to the provider of a particular Part 3 service, references in this section to duties applying to providers of Part 3 services (or to providers of Category 1 services or Category 2A services) are to such duties as apply in relation to that service in accordance with sections 6 and 21 or (as the case may be) Chapter 5.

Guidance¶

48 OFCOM’s guidance: record-keeping duties and children’s access assessments¶

(1) OFCOM must produce guidance for providers of Part 3 services to assist them in complying with—

(a) their duties set out in section 20 or 30 (record-keeping and review), and

(b) their duties set out in section 32 (children’s access assessments).

(2) Before producing the guidance (including revised or replacement guidance), OFCOM must consult the Information Commissioner.

(3) OFCOM must publish the guidance (and any revised or replacement guidance).

Chapter 7 Interpretation of Part 3¶

49 “Regulated user-generated content”, “user-generated content”, “news¶

publisher content”

(1) This section applies for the purposes of this Part.

(2) “Regulated user-generated content”, in relation to a regulated user-to-user service, means user-generated content, except—

(a) emails,

(b) SMS messages,

(d) one-to-one live aural communications (see subsection (5)),

(e) comments and reviews on provider content (see subsection (6)),

(f) identifying content that accompanies content within any of paragraphs (a) to (e)⁵, and

(g) news publisher content (see subsection (8)).

(3) “User-generated content”, in relation to a user-to-user service, means content—

(a) that is—

(i) generated directly on the service by a user of the service, or

(ii) uploaded to or shared on the service by a user of the service, and

(b) that may be encountered by another user, or other users, of the service by means of the service.

(4) For the purposes of subsection (3)—

(a) the reference to content generated, uploaded or shared by a user includes content generated, uploaded or shared by means of software or an automated tool applied by the user;

(b) a bot is to be regarded as a user of a service if—

(i) the bot’s functions include interacting with user-generated content, and

(ii) the bot is not operated by or on behalf of the provider of the service.

(5) “One-to-one live aural communications”, in relation to a user-to-user service, means content—

(a) consisting of speech or other sounds conveyed in real time between two users of the service by means of the service,

(b) that is not a recording, and

(6) “Comments and reviews on provider content”, in relation to a user-to-user service, means content present on the service consisting of comments on, or reviews of, provider content (together with any further comments on such comments or reviews).

(7) In subsection (6) “provider content” means content published on a service by the provider of the service or by a person acting on behalf of the provider (including where the publication of the content is effected or controlled by means of software or an automated tool or algorithm applied by the provider or by a person acting on behalf of the provider).

For the purposes of subsection (6), content that is user-generated content in relation to a service is not to be regarded as provider content in relation to that service.

(8) “News publisher content”, in relation to a regulated user-to-user service, means any content present on the service that is within subsection (9) or (10).

(9) Content is within this subsection if it was generated directly on the service by a user of the service that is a recognised news publisher.

(10) Content is within this subsection if—

(a) the content was uploaded to or shared on the service by a user of the service, and

(b) the content either—

(i) reproduces in full an article or written item that was originally published by a recognised news publisher (and is not a screenshot or photograph of that article or item or of part of it),

(ii) is a recording of an item originally broadcast by a recognised news publisher (and is not an excerpt of such a recording), or

(iii) is a link to a full article or written item originally published by a recognised news publisher, or to a full recording of an item originally broadcast by a recognised news publisher.

(11) For the meaning of “recognised news publisher”, see section 50.

(12) In this section—

“MMS message” means a Multimedia Messaging Service message (that may include images, sounds and short videos) that may be sent between telephone numbers allocated in accordance with a national or international numbering plan;

“SMS message” means a Short Message Service text message composed principally of letters or numbers that may be sent between telephone numbers allocated in accordance with a national or international numbering plan.

50 “Recognised news publisher”¶

(1) In this Part, “recognised news publisher” means any of the following entities—

(a) the British Broadcasting Corporation,

(b) Sianel Pedwar Cymru,

(c) the holder of a licence under the Broadcasting Act 1990 or 1996 who publishes news-related material in connection with the broadcasting activities authorised under the licence, and

(d) any other entity which—

(i) meets all of the conditions in subsection (2), and

(ii) is not an excluded entity (see subsection (3)).

(2) The conditions referred to in subsection (1)(d)(i) are that the entity—

(a) has as its principal purpose the publication of news-related material, and such material—

(i) is created by different persons, and

(ii) is subject to editorial control,

(b) publishes such material in the course of a business (whether or not carried on with a view to profit),

(d) has policies and procedures for handling and resolving complaints,

(e) has a registered office or other business address in the United Kingdom,

(f) is the person with legal responsibility for material published by it in the United Kingdom, and

(g) publishes—

(i) the entity’s name, the address mentioned in paragraph (e) and the entity’s registered number (if any), and

(ii) the name and address of any person who controls the entity (including, where such a person is an entity, the address of that person’s registered or principal office and that person’s registered number (if any)).

(3) An “excluded entity” is an entity—

(a) which is a proscribed organisation under the Terrorism Act 2000 (see section 3 of that Act), or

(b) the purpose of which is to support a proscribed organisation under that Act.

(4) For the purposes of subsection (2)—

(a) news-related material is “subject to editorial control” if there is a person (whether or not the publisher of the material) who has editorial or equivalent responsibility for the material, including responsibility for how it is presented and the decision to publish it;

(b) “control” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act.

(5) In this section—

“news-related material” means material consisting of—

(a) news or information about current affairs,

(b) opinion about matters relating to the news or current affairs, or

“publish” means publish by any means (including by broadcasting), and references to a publisher and publication are to be construed accordingly;

“standards code” means—

(a) a code of standards that regulates the conduct of publishers, that is published by an independent regulator, or

(b) a code of standards that regulates the conduct of the entity in question, that is published by the entity itself.

51 “Search content”, “search results” etc¶

(1) This section applies for the purposes of this Part.

(2) “Search content” means content that may be encountered in or via search results of a search service, except—

(a) paid-for advertisements (see section 189),

(b) content on the website of a recognised news publisher (see section 50), and

(i) reproduces in full an article or written item that was originally published by a recognised news publisher (and is not a screenshot or photograph of that article or item or of part of it),

(ii) is a recording of an item originally broadcast by a recognised news publisher (and is not an excerpt of such a recording), or

(iii) is a link to a full article or written item originally published by a recognised news publisher, or to a full recording of an item originally broadcast by a recognised news publisher.

(3) “Search results”, in relation to a search service, means content presented to a user of the service by operation of the search engine in response to a search request made by the user.

(4) “Search” means search by any means, including by input of text or images or by speech, and references to a search request are to be construed accordingly.

(5) In subsection (2), the reference to encountering content “via search results”—

(a) is to encountering content as a result of interacting with search results (for example, by clicking on them);

(b) does not include a reference to encountering content as a result of subsequent interactions with an internet service other than the search service.

(6) In this section references to a search service include references to a user-to-user service that includes a search engine.

52 “Illegal content” etc¶

(1) This section applies for the purposes of this Part.

(2) “Illegal content” means content that amounts to a relevant offence.

(3) Content consisting of certain words, images, speech or sounds amounts to a relevant offence if—

(a) the use of the words, images, speech or sounds amounts to a relevant offence,

(b) (in the case of a user-to-user service) the use of the words, images, speech or sounds, when taken together with other regulated user- generated content present on the service, amounts to a relevant offence,

(d) the publication or dissemination of the content constitutes a relevant offence.

(4) “Relevant offence” means—

(a) an offence specified in Schedule 5 (terrorism offences),

(b) an offence specified in Schedule 6 (offences related to child sexual exploitation and abuse),

(d) an offence, not within paragraph (a), (b) or (c), of which the victim or intended victim is an individual (or individuals).

(5) “Terrorism content” means content that amounts to an offence specified in Schedule 5.

(6) “CSEA content” means content that amounts to an offence specified in Schedule 6.

(7) “Priority illegal content” means—

(a) terrorism content,

(b) CSEA content, and

(8) An offence is not to be regarded as a relevant offence within subsection (4)(d) if—

(a) the offence concerns—

(i) the infringement of intellectual property rights,

(ii) the safety or quality of goods (as opposed to what kind of goods they are), or

(iii) the performance of a service by a person not qualified to perform it; or

(b) it is an offence under the Consumer Protection from Unfair Trading Regulations 2008 (S.I. 2008/1277).

(9) For the purposes of determining whether content amounts to an offence, no account is to be taken of whether or not anything done in relation to the content takes place in any part of the United Kingdom.

(10) Subsection (11) applies in relation to a regulated user-to-user service (but, in the case of a combined service, does not apply in relation to the search content of the service).

(11) References to “illegal content”, “terrorism content”, “CSEA content” and “priority illegal content” are to be read as—

(a) limited to content within the definition in question that is regulated user-generated content in relation to the service, and

(b) including material which, if it were present on the service, would be content within paragraph (a) (and this section is to be read with such modifications as may be necessary for the purpose of this paragraph).

(12) In this section “offence” means an offence under the law of any part of the United Kingdom.

53 “Content that is harmful to children” etc¶

(1) This section applies for the purposes of this Part.

(2) “Primary priority content that is harmful to children” means content of a description designated in regulations made by the Secretary of State as primary priority content that is harmful to children.

(3) “Priority content that is harmful to children” means content of a description designated in regulations made by the Secretary of State as priority content that is harmful to children.

(4) “Content that is harmful to children” means—

(a) primary priority content that is harmful to children,

(b) priority content that is harmful to children, or

(c) content, not within paragraph (a) or (b), of a kind which presents a material risk of significant harm to an appreciable number of children in the United Kingdom.

(5) For the purposes of this section—

(a) illegal content (see section 52) is not to be regarded as within subsection (4)(c), and

(b) content is not to be regarded as within subsection (4)(c) if the risk of harm flows from—

(i) the content’s potential financial impact,

(ii) the safety or quality of goods featured in the content, or

(iii) the way in which a service featured in the content may be performed (for example, in the case of the performance of a service by a person not qualified to perform it).

(6) “Non-designated content that is harmful to children” means content within subsection (4)(c).

(7) Subsection (8) applies in relation to a regulated user-to-user service (but, in the case of a combined service, does not apply in relation to the search content of the service).

(8) References to “primary priority content that is harmful to children”, “priority content that is harmful to children”, “content that is harmful to children” and “non-designated content that is harmful to children” are to be read as—

(a) limited to content within the definition in question that is regulated user-generated content in relation to the service, and

(9) Sections 55 and 56 contain further provision about regulations made under this section.

54 “Content that is harmful to adults” etc¶

(1) This section applies for the purposes of this Part.

(2) “Priority content that is harmful to adults” means content of a description designated in regulations made by the Secretary of State as priority content that is harmful to adults.

(3) “Content that is harmful to adults” means—

(a) priority content that is harmful to adults, or

(b) content, not within paragraph (a), of a kind which presents a material risk of significant harm to an appreciable number of adults in the United Kingdom.

(4) For the purposes of this section—

(a) illegal content (see section 52) is not to be regarded as within subsection (3)(b), and

(b) content is not to be regarded as within subsection (3)(b) if the risk of harm flows from—

(i) the content’s potential financial impact,

(ii) the safety or quality of goods featured in the content, or

(iii) the way in which a service featured in the content may be performed (for example, in the case of the performance of a service by a person not qualified to perform it).

(5) References to “priority content that is harmful to adults” and “content that is harmful to adults” are to be read as—

(a) limited to content within the definition in question that is regulated user-generated content in relation to a regulated user-to-user service, and

(b) including material which, if it were present on a regulated user-to-user service, would be content within paragraph (a) (and this section is to be read with such modifications as may be necessary for the purpose of this paragraph).

(6) Sections 55 and 56 contain further provision about regulations made under this section.

55 Regulations under sections 53 and 54¶

(1) The Secretary of State may specify a description of content in regulations under section 53(2) (primary priority content that is harmful to children) only if the Secretary of State considers that, in relation to Part 3 services—

(a) there is a material risk of significant harm to an appreciable number of children presented by content of that description that is regulated user- generated content or search content, and

(b) it is appropriate for the duties set out in sections 11(3)(a) and 26(3)(a) (duty in relation to children of all ages) to apply in relation to content of that description.

(2) The Secretary of State may specify a description of content in regulations under section 53(3) (priority content that is harmful to children) only if the Secretary of State considers that, in relation to Part 3 services, there is a material risk of significant harm to an appreciable number of children presented by content of that description that is regulated user-generated content or search content.

(3) The Secretary of State may specify a description of content in regulations under section 54(2) (priority content that is harmful to adults) only if the Secretary of State considers that, in relation to regulated user-to-user services, there is a material risk of significant harm to an appreciable number of adults presented by content of that description that is regulated user-generated content.

(4) The Secretary of State may not specify a description of content in regulations under section 53 or 54 if—

(a) any content of that description is illegal content (see section 52), or

(b) the risk of harm presented by content of that description flows from—

(i) the content’s potential financial impact,

(ii) the safety or quality of goods featured in the content, or

(iii) the way in which a service featured in the content may be performed (for example, in the case of the performance of a service by a person not qualified to perform it).

(5) The Secretary of State must consult OFCOM before making regulations under section 53 or 54.

(6) In this section references to children or adults are to children or adults in the United Kingdom.

56 Regulations under sections 53 and 54: OFCOM’s review and report¶

(1) In this section “regulations” means regulations under section 53 or 54.

(2) For so long as regulations are in force, OFCOM must carry out reviews of—

(a) the incidence on regulated user-to-user services of—

(i) content that is harmful to children, and

(ii) content that is harmful to adults,

(b) the incidence on regulated search services and combined services of search content that is harmful to children, and

(c) the severity of harm that individuals in the United Kingdom suffer, or may suffer, as a result of those kinds of content.

(3) OFCOM must produce and publish a report on the outcome of each review.

(4) The report must include advice as to whether, in OFCOM’s opinion, it is appropriate to make changes to the regulations, specifying the changes that OFCOM recommend.

(5) The reports must be published not more than three years apart.

(6) The first report must be published before the end of the period of three years beginning with the day on which the first statutory instrument containing regulations is made.

(7) OFCOM must send a copy of each report to the Secretary of State.

Part 4 Other duties of providers of regulated user-to-user services and regulated search services¶

Chapter 1 Providers of Category 1 services: user identity verification¶

57 User identity verification¶

(1) A provider of a Category 1 service must offer all adult users of the service the option to verify their identity (if identity verification is not required for access to the service).

(2) The verification process may be of any kind (and in particular, it need not require documentation to be provided).

(3) A provider of a Category 1 service must include clear and accessible provisions in the terms of service explaining how the verification process works.

(4) If a person is the provider of more than one Category 1 service, the duties set out in this section apply in relation to each such service.

(5) The duty set out in subsection (1) applies in relation to all adult users, not just those who begin to use a service after that duty begins to apply.

(6) The duties set out in this section extend only to—

(a) the user-to-user part of a service, and

(b) the design, operation and use of a service in the United Kingdom.

(7) For the purposes of this section a person is an “adult user” of a service if the person is an adult in the United Kingdom who—

(a) is a user of the service, or

(b) seeks to begin to use the service (for example by setting up an account).

(8) For the meaning of “Category 1 service”, see section 81 (register of categories of services).

58 OFCOM’s guidance about user identity verification¶

(1) OFCOM must produce guidance for providers of Category 1 services to assist them in complying with the duty set out in section 57(1).

(2) In producing the guidance (including revised or replacement guidance), OFCOM must have particular regard to the desirability of ensuring that providers of Category 1 services offer users a form of identity verification likely to be available to vulnerable adult users.

(3) Before producing the guidance (including revised or replacement guidance), OFCOM must consult—

(a) the Information Commissioner,

(b) persons whom OFCOM consider to have technological expertise relevant to the duty set out in section 57(1),

(d) such other persons as OFCOM consider appropriate.

(4) OFCOM must publish the guidance (and any revised or replacement guidance).

Chapter 2 Reporting child sexual exploitation and abuse content¶

59 Requirement to report CSEA content to the NCA¶

(1) A UK provider of a regulated user-to-user service must operate the service using systems and processes which secure (so far as possible) that the provider reports all detected and unreported CSEA content present on the service to the NCA.

(2) A non-UK provider of a regulated user-to-user service must operate the service using systems and processes which secure (so far as possible) that the provider reports all detected and unreported UK-linked CSEA content present on the service to the NCA (and does not report to the NCA CSEA content which is not UK-linked).

(3) A UK provider of a regulated search service must operate the service using systems and processes which secure (so far as possible) that the provider reports all detected and unreported CSEA content present on websites or databases capable of being searched by the search engine to the NCA.

(4) A non-UK provider of a regulated search service must operate the service using systems and processes which secure (so far as possible) that the provider reports all detected and unreported UK-linked CSEA content present on websites or databases capable of being searched by the search engine to the NCA (and does not report to the NCA CSEA content which is not UK-linked).

(5) A UK provider of a combined service must comply with the requirement under subsection (3) in relation to the search engine of the service.

(6) A non-UK provider of a combined service must comply with the requirement under subsection (4) in relation to the search engine of the service.

(7) Providers’ reports under this section—

(a) must meet the requirements set out in regulations under section 60, and

(b) must be sent to the NCA in the manner, and within the time frames, set out in those regulations.

(8) If a person is the provider of more than one regulated user-to-user service or regulated search service, requirements under this section apply in relation to each such service.

(9) Terms used in this section are defined in section 63.

(10) This section applies only in relation to CSEA content detected on or after the date on which this section comes into force.

60 Regulations about reports to the NCA¶

(1) The Secretary of State must make regulations in connection with the reports that are to be made to the NCA (including by non-UK providers) as required by section 59.

(2) The regulations may make provision about—

(a) the information to be included in the reports,

(b) the format of the reports,

(d) the time frames for sending the reports to the NCA (including provision about cases of particular urgency),

(e) the records that providers must keep in relation to the reports, or the details that providers must retain as evidence that they have made the reports, and

(f) such other matters relating to the reports as the Secretary of State considers appropriate.

(3) Before making the regulations, the Secretary of State must consult—

(a) the NCA,

(b) OFCOM, and

61 NCA: information sharing¶

In section 16 of the Crime and Courts Act 2013 (interpretation of Part 1), in subsection (1), in the definition of “permitted purpose”, after paragraph (o) insert—

(oa) the exercise of any function of OFCOM (the Office of Communications) under the Online Safety Act 2022;
Amendment · 1 operation
insert section-16-1

62 Offence in relation to CSEA reporting¶

(1) A person commits an offence if, in purported compliance with a requirement under section 59—

(a) the person provides information that is false in a material respect, and

(b) at the time the person provides it, the person knows that it is false in a material respect or is reckless as to whether it is false in a material respect.

(2) A person who commits an offence under this section is liable—

(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum summary term for either-way offences or a fine (or both);

(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);

(d) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).

63 Interpretation of this Chapter¶

(1) This section applies for the purposes of this Chapter.

(2) A provider of a regulated user-to-user service or a regulated search service is a “UK provider” of the service if the provider is—

(a) an individual or individuals who are habitually resident in the United Kingdom, or

(b) an entity incorporated or formed under the law of any part of the United Kingdom.

(3) Otherwise, a provider of a regulated user-to-user service or a regulated search service is a “non-UK provider” of the service.

(4) CSEA content is “detected” by a provider when the provider becomes aware of the content, whether by means of the provider’s systems or processes or as a result of another person alerting the provider.

(5) CSEA content is “unreported”, in relation to a provider, if the reporting of that content is not covered by arrangements (mandatory or voluntary)—

(a) by which the provider reports content relating to child sexual exploitation or abuse to a foreign agency, or

(b) by which an entity that is a group undertaking in relation to the provider reports content relating to child sexual exploitation or abuse to—

(i) the NCA, or

(ii) a foreign agency.

(6) CSEA content is “UK-linked” if a provider has evidence of a link between the content and the United Kingdom, based on any of the following—

(a) the place where the content was published, generated, uploaded or shared;

(b) the nationality of a person suspected of committing the related offence;

(d) the location of a child who is a suspected victim of the related offence.

For the purposes of paragraphs (b), (c) and (d) an offence is “related” to CSEA content if the content amounts to that offence (construed in accordance with section 52: see subsections (3) and (9) of that section).

(7) In this Chapter—

“CSEA content” has the same meaning as in Part 3 (see section 52);

“foreign agency” means a person exercising functions in a country outside the United Kingdom which correspond to the NCA’s functions insofar as they relate to receiving and disseminating reports about CSEA content;

“group undertaking” has the meaning given by section 1161(5) of the Companies Act 2006;

“NCA” means the National Crime Agency.

(8) Sections 1161(5) and 1162 of, and Schedule 7 to, the Companies Act 2006—

(a) are to apply in relation to an entity which is not an undertaking (as defined in section 1161(1) of that Act) as they apply in relation to an undertaking, and

(b) are to be read with any necessary modifications if applied to an entity formed under the law of a country outside the United Kingdom.

Chapter 3 Transparency reporting¶

64 Transparency reports about certain Part 3 services¶

(1) Once a year, OFCOM must give every provider of a relevant service a notice which requires the provider to produce a report about the service (a “transparency report”).

(2) If a person is the provider of more than one relevant service, a notice must be given to the provider in respect of each such service.

(3) In response to a notice relating to a relevant service, the provider of the service must produce a transparency report which must—

(a) contain information of a kind specified or described in the notice,

(b) be in the format specified in the notice,

(d) be published in the manner and by the date specified in the notice.

(4) A provider must ensure that the information provided in a transparency report is—

(a) complete, and

(b) accurate in all material respects.

(5) A “relevant service” means—

(a) a Category 1 service (see section 81(10)(a));

(b) a Category 2A service (see section 81(10)(b));

(6) In a notice which relates to a Category 1 service or a Category 2B service, OFCOM may only specify or describe user-to-user information.

But in the case of a service described in subsection (9), that subsection applies instead.

(7) In a notice which relates to a regulated search service that is a Category 2A service, OFCOM may only specify or describe search engine information.

(8) In a notice which relates to a combined service that is a Category 2A service, and is not also a Category 1 service or a Category 2B service, OFCOM may only specify or describe search engine information.

(9) In a notice which relates to a combined service that is a Category 2A service, as well as being a Category 1 service or a Category 2B service, OFCOM may specify or describe user-to-user information or search engine information, or both those kinds of information.

(10) In subsections (6) to (9)⁴—

(a) “user-to-user information” means information which—

(i) is about the matters listed in Part 1 of Schedule 8, and

(ii) relates to the user-to-user part of a service;

(b) “search engine information” means information which—

(i) is about the matters listed in Part 2 of Schedule 8, and

(ii) relates to the search engine of a service.

(11) Part 3 of Schedule 8 makes further provision about transparency reports.

(12) The Secretary of State may by regulations amend subsection (1) so as to change the frequency of the transparency reporting process.

(13) The Secretary of State must consult OFCOM before making regulations under subsection (12).

(14) In this section “notice” means a notice under subsection (1).

65 OFCOM’s guidance about transparency reports¶

(1) OFCOM must produce guidance about—

(a) how OFCOM will determine which information they will require transparency reports under section 64 to contain, including—

(i) the principles that they will apply in relation to each of the factors mentioned in paragraph 31 of Schedule 8, and

(ii) the steps that they will take to engage with providers of relevant services before requiring information in a notice under section 64(1);

(b) how information from transparency reports produced by providers of relevant services under section 64 will be used to produce OFCOM’s transparency reports (see section 135); and

(c) any other matter that OFCOM consider to be relevant to the production and publication of transparency reports under section 64 or 135.

(2) Before producing the guidance (including revised or replacement guidance), OFCOM must consult such of the following as they consider appropriate—

(a) providers of regulated user-to-user services, and of regulated search services,

(b) persons who appear to OFCOM to represent such providers,

(c) persons who appear to OFCOM to represent the interests of children (generally or with particular reference to online safety matters),

(d) persons whom OFCOM consider to have expertise in equality issues and human rights, in particular—

(i) the right to freedom of expression set out in Article 10 of the Convention, and

(ii) the right to respect for a person’s private and family life, home and correspondence set out in Article 8 of the Convention,

(e) the Information Commissioner,

(f) persons who appear to OFCOM to represent the interests of those with protected characteristics (within the meaning of Part 2 of the Equality Act 2010), and

(g) persons whom OFCOM consider to have expertise in the enforcement of the criminal law and the protection of national security that is relevant to online safety matters,

and OFCOM must also consult such other persons as OFCOM consider appropriate.

(3) OFCOM must publish the guidance (and any revised or replacement guidance).

(4) In exercising their functions under section 64 or 135, OFCOM must have regard to the guidance for the time being published under this section.

(5) In this section, “relevant service” has the same meaning as in section 64 (see subsection (5) of that section).

Part 5 Duties of providers of regulated services: certain pornographic content¶

66 “Pornographic content”, “provider pornographic content”, “regulated¶

provider pornographic content”

(1) This section applies for the purposes of this Part.

(2) “Pornographic content” means content of such a nature that it is reasonable to assume that it was produced solely or principally for the purpose of sexual arousal.

(3) “Provider pornographic content”, in relation to an internet service, means pornographic content that is published or displayed on the service by the provider of the service or by a person acting on behalf of the provider (including pornographic content published or displayed on the service by means of software or an automated tool or algorithm applied by the provider or by a person acting on behalf of the provider).

(4) “Regulated provider pornographic content”, in relation to an internet service, means provider pornographic content other than—

(a) content consisting only of text, or

(b) paid-for advertisements (see section 189).

(5) References to pornographic content that is “published or displayed” on a service—

(a) include, in particular—

(i) references to pornographic content that is only visible or audible to users as a result of interacting with content that is blurred, distorted or obscured (for example, by clicking on such content), but only where the pornographic content is present on the service, and

(ii) references to pornographic content that is embedded on the service;

(b) do not include references to pornographic content that appears in search results of a search service or a combined service.

(6) Pornographic content that is user-generated content in relation to an internet service is not to be regarded as provider pornographic content in relation to that service.

(7) In this section—

“search results” has the meaning given by section 51(3);

“user-generated content” has the meaning given by section 49 (see subsections (3) and (4) of that section).

67 Scope of duties about regulated provider pornographic content¶

(1) A provider of an internet service within subsection (2) must comply with the duties set out in section 68 in relation to the service.

(2) An internet service is within this subsection if—

(a) regulated provider pornographic content is published or displayed on the service,

(b) the service is not exempt, and

(3) A service is “exempt” for the purposes of this Part if it is —

(a) a user-to-user service or a search service of a description that is exempt as provided for by Schedule 1, or

(b) an internet service of a kind described in Schedule 9.

(4) A service “has links with the United Kingdom” for the purposes of this Part if either of the following conditions is met in relation to the service—

(a) the service has a significant number of United Kingdom users, or

(b) United Kingdom users form one of the target markets for the service (or the only target market).

(5) This Part does not apply in relation to a part of a regulated service if—

(a) in the case of a Part 3 service, the conditions in paragraph 7(2) of Schedule 1 (internal business service conditions) are met in relation to that part;

(b) in the case of an internet service other than a Part 3 service, the conditions in paragraph 1(2) of Schedule 9 (internal business service conditions) are met in relation to that part.

(6) This Part does not apply in relation to a part of a regulated service if that part is an on-demand programme service within the meaning of section 368A of the Communications Act.

(7) If a person is the provider of more than one internet service within subsection (2), the duties set out in section 68 apply in relation to each such service.

(8) The duties set out in section 68 extend only to the design, operation and use of an internet service in the United Kingdom.

68 Duties about regulated provider pornographic content¶

(1) This section sets out the duties which apply in relation to internet services within section 67(2).

(2) A duty to ensure that children are not normally able to encounter content that is regulated provider pornographic content in relation to the service (for example, by using age verification).

(3) A duty to make and keep a written record, in an easily understandable form, of—

(a) the measures taken or in use, and the policies implemented, to comply with the duty set out in subsection (2), and

(b) the way in which the provider, when deciding on and implementing the measures and policies referred to in paragraph (a), has had regard to the importance of protecting United Kingdom users from a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of a regulated service (including, but not limited to, any such provision or rule concerning the processing of personal data).

69 OFCOM’s guidance about duties set out in section 68¶

(1) OFCOM must produce guidance for providers of internet services within section 67(2) to assist them in complying with their duties set out in section 68.

(2) The guidance must include—

(a) examples of measures and policies that may be appropriate for the purpose of compliance with the duty set out in section 68(2),

(b) examples of ways in which a provider may have regard to the importance of protecting users as mentioned in section 68(3)(b),

(c) principles that OFCOM propose to apply when determining whether a provider has complied with each of the duties set out in section 68, and

(d) examples of circumstances in which OFCOM are likely to consider that a provider has not complied with each of those duties.

(3) Before producing the guidance (including revised or replacement guidance), OFCOM must consult—

(a) the Secretary of State,

(b) persons who appear to OFCOM to represent providers of internet services within section 67(2),

(d) persons who appear to OFCOM to represent the interests of children (generally or with particular reference to online safety matters),

(e) the Information Commissioner,

(f) persons whom OFCOM consider to have expertise in innovation, or emerging technology, that is relevant to online safety matters, and

(g) such other persons as OFCOM consider appropriate.

(4) But if OFCOM propose to revise the guidance, and consider that the minor nature of the proposal means that consultation is unnecessary—

(a) OFCOM must notify the Secretary of State of the proposed changes, and

(b) if the Secretary of State agrees that it is appropriate, the consultation requirements set out in subsection (3) do not apply in relation to the proposed changes.

(5) OFCOM must keep the guidance under review.

(6) OFCOM must publish the guidance (and any revised or replacement guidance).

Part 6 Duties of providers of regulated services: fees¶

70 Duty to notify OFCOM¶

(1) A provider of a regulated service must notify OFCOM in relation to a charging year which is—

(a) the first fee-paying year in relation to that provider, or

(b) any charging year after the first fee-paying year where—

(i) the previous charging year was not a fee-paying year in relation to the provider, and the charging year in question is a fee- paying year in relation to the provider, or

(ii) the previous charging year was a fee-paying year in relation to the provider, and the charging year in question is not a fee- paying year in relation to the provider.

(2) A “fee-paying year”, in relation to a provider, means a charging year where both of the following conditions apply—

(a) the provider’s qualifying worldwide revenue for the qualifying period that relates to that charging year is equal to or greater than the threshold figure that has effect for that charging year (see section 73), and

(b) the provider is not exempt (see subsection (6)).

(3) A notification under subsection (1) in relation to a charging year must include details of all regulated services provided by the provider, and where it is a notification under subsection (1)(a) or (b)(i), it must also include—

(a) details of the provider’s qualifying worldwide revenue for the qualifying period that relates to that charging year, and

(b) supporting evidence, documents or other information of a kind described in, or about matters described in, regulations made by the Secretary of State.

(4) Section 72 makes provision about a statement by OFCOM setting out what is meant by “qualifying worldwide revenue” and “qualifying period” in this section and section 71.

(5) A notification under subsection (1) must be provided to OFCOM—

(a) in relation to the initial charging year, within four months of the date on which the first threshold figure under section 73 is published;

(b) in relation to subsequent charging years, at least six months before the beginning of the charging year to which the notification relates.

(6) OFCOM may provide that particular descriptions of providers of regulated services are exempt for the purposes of this section and section 71 where—

(a) OFCOM consider that an exemption for such providers is appropriate, and

(b) the Secretary of State approves the exemption.

(7) OFCOM may revoke such an exemption where they consider that it is no longer appropriate and the Secretary of State approves the revocation.

(8) Exemptions, or revocations of exemptions, which are approved by the Secretary of State are to take effect from the beginning of a particular charging year.

(9) Details of an exemption or revocation must be published by OFCOM at least six months before the beginning of the first charging year for which the exemption or revocation is to have effect.

(10) But subsection (9) does not apply in relation to any exemptions which are to have effect for the initial charging year.

(11) The Secretary of State must consult OFCOM before making regulations under subsection (3)(b).

(12) For the purposes of this section and section 71, the “provider” of a regulated service, in relation to a charging year, includes a person who is the provider of the service for part of that year.

71 Duty to pay fees¶

(1) OFCOM may require a provider of a regulated service to pay a fee in respect of a charging year which is a fee-paying year.

(2) Where OFCOM require a provider of a regulated service to pay a fee in respect of a charging year, the fee is to be equal to the amount produced by a computation—

(a) made by reference to—

(i) the provider’s qualifying worldwide revenue for the qualifying period relating to that charging year, and

(ii) any other factors that OFCOM consider appropriate, and

(b) made in the manner that OFCOM consider appropriate.

(3) For the purposes of this section and section 70—

(a) the amount of a provider’s qualifying worldwide revenue for a qualifying period, or

(b) the amount of a fee to be paid to OFCOM, or of an instalment of such a fee,

is, in the event of a disagreement between the provider and OFCOM, the amount determined by OFCOM.

(4) When determining fees payable under this section, OFCOM must do so in accordance with a statement of principles as mentioned in section 75(1).

(5) Where a person is the provider of a regulated service for part of a charging year only, OFCOM may refund all or part of a fee paid to OFCOM under this section by that provider in respect of that year.

(6) In this section, “fee-paying year” has the same meaning as in section 70.

72 OFCOM’s statement about “qualifying worldwide revenue” etc¶

(1) For the purposes of sections 70 and 71, OFCOM must produce a statement giving information about—

(a) the amounts which do, or do not, comprise a person’s “qualifying worldwide revenue”, and

(b) the period which is the “qualifying period” in relation to a charging year.

(2) Provision contained in the statement as mentioned in subsection (1)(a) is also to apply for the purposes of determining the amount of penalties which OFCOM may impose under Chapter 6 of Part 7 (see paragraph 4 of Schedule 12), and must include provision about the application of that term to a group of entities for the purposes of paragraph 5 of that Schedule.

(3) The statement may make different provision in relation to different kinds of regulated services.

(4) Before producing the statement (including a revised or replacement statement), OFCOM must consult—

(a) the Secretary of State,

(b) the Treasury, and

(5) OFCOM must keep the statement under review.

(6) OFCOM must publish the statement (and any revised or replacement statement).

(7) OFCOM must send a copy of the statement (and any revised or replacement statement) to the Secretary of State, and the Secretary of State must lay it before Parliament.

73 Threshold figure¶

(1) OFCOM must carry out a consultation to inform the setting of the threshold figure for the purposes of sections 70 and 71, consulting such persons as they consider appropriate.

(2) After the completion of the consultation, and having taken advice from OFCOM, the Secretary of State must determine the figure that the Secretary of State considers appropriate to be the threshold figure for those purposes.

(3) The Secretary of State must—

(a) publish, in such manner as the Secretary of State considers appropriate, a statement specifying the threshold figure, and

(b) lay a copy of that statement before Parliament.

(4) The Secretary of State must keep the threshold figure under review.

(5) If the Secretary of State considers that it may be appropriate to revise the threshold figure, the Secretary of State may request OFCOM to carry out a further consultation, and subsections (1) to (3)³ apply again.

(6) A threshold figure is to take effect from the beginning of a particular charging year.

(7) A statement specifying a threshold figure must be published at least nine months before the beginning of the first charging year for which that figure is to have effect.

(8) But subsection (7) does not apply in relation to the first threshold figure published under this section.

74 Secretary of State’s guidance about fees¶

(1) The Secretary of State must issue guidance to OFCOM about the principles to be included in a statement of principles that OFCOM propose to apply in determining fees payable under section 71 (see section 75).

(2) The Secretary of State must consult OFCOM before issuing, revising or replacing the guidance.

(3) The guidance may not be revised or replaced more frequently than once every three years unless—

(a) the guidance needs to be corrected because of an amendment, repeal or modification of any provision of this Part, or

(b) the revision or replacement is by agreement between the Secretary of State and OFCOM.

(4) The Secretary of State must lay the guidance (including revised or replacement guidance) before Parliament.

(5) The Secretary of State must publish the guidance (and any revised or replacement guidance).

(6) In exercising any functions under this Part, OFCOM must have regard to the guidance for the time being published under this section.

75 OFCOM’s fees statements¶

(1) OFCOM may not require a provider of a regulated service to pay a fee under section 71 unless there is in force a statement of the principles that OFCOM propose to apply in determining fees payable under that section.

(2) Those principles must be such as appear to OFCOM to be likely to secure, on the basis of such estimates of the likely costs as it is practicable for them to make—

(a) that on a year by year basis, the aggregate amount of the fees payable to OFCOM under section 71 is sufficient to meet, but does not exceed, the annual cost to OFCOM of the exercise of their online safety functions;

(b) that the fees required under section 71 are justifiable and proportionate having regard to the functions in respect of which they are imposed;

(c) that the relationship between meeting the cost of the exercise of those functions and the amounts of the fees is transparent.

(3) A statement of principles mentioned in subsection (1) must (among other things)—

(a) include details relating to the computation model used to calculate fees payable under section 71, including details of factors mentioned in subsection (2)(a)(ii) of that section (if any),

(b) include details about the meaning of “qualifying worldwide revenue” and “qualifying period”, as set out in the statement under section 72 for the purposes of sections 70 and 71, and

(4) Before making or revising such a statement of principles, OFCOM must consult such persons as they consider appropriate.

(5) Such a statement of principles may make different provision in relation to different kinds of regulated services.

(6) OFCOM must publish such a statement of principles (and any revised or replacement statement).

(7) As soon as reasonably practicable after the end of each charging year, OFCOM must publish a statement setting out, in respect of that year—

(a) the aggregate amounts of the fees payable under section 71 for that year that have been received by OFCOM,

(b) the aggregate amounts of the fees payable under that section for that year that remain outstanding and are likely to be paid or recovered, and

(8) Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (7) must be carried forward and taken into account in determining what is required to satisfy the requirement imposed by virtue of subsection (2)(a) in relation to the following year.

(9) For the purposes of this section—

(a) OFCOM’s costs of the exercise of their online safety functions during a charging year include the costs of preparations for the exercise of their online safety functions incurred during that year; and

(b) OFCOM’s costs of preparations for the exercise of their online safety functions incurred after the day on which this section comes into force but before the charging year in which those functions were first exercised are to be treated as if they were incurred during that year.

76 Meaning of “charging year” and “initial charging year”¶

In this Part—

“charging year” means any period of 12 months beginning with 1 April, except such a period that falls before the initial charging year;

“initial charging year” means the period of 12 months beginning with 1 April specified by OFCOM in a notice published for the purposes of this Part.

Part 7 OFCOM's powers and duties in relation to regulated services¶

Chapter 1 General duties¶

77 General duties of OFCOM under section 3 of the Communications Act¶

(1) Section 3 of the Communications Act (general duties of OFCOM) is amended in accordance with subsections (2) to (8)⁷.

(2) In subsection (2), after paragraph (f) insert—

(g) the adequate protection of citizens from harm presented by content on regulated services, through the appropriate use by providers of such services of systems and processes designed to reduce the risk of such harm.

(3) In subsection (4)(c), at the beginning insert “(subject to subsection (5A))”.

(4) After subsection (4) insert—

(4A) In performing their duties under subsection (1) in relation to matters to which subsection (2)(g) is relevant, OFCOM must have regard to such of the following as appear to them to be relevant in the circumstances—
(a) the risk of harm to citizens presented by content on regulated services;
(b) the need for a higher level of protection for children than for adults;
(c) the need for it to be clear to providers of regulated services how they may comply with their duties set out in Chapter 2, 3, 4 or 5 of Part 3, Chapter 1 of Part 4, or Part 5 of the Online Safety Act 2022;
(d) the need to exercise their functions so as to secure that providers of regulated services may comply with such duties by taking measures, or using measures, systems or processes, which are (where relevant) proportionate to—
(i) the size or capacity of the provider in question, and
(ii) the level of risk of harm presented by the service in question, and the severity of the potential harm;
(e) the desirability of promoting the use by providers of regulated services of technologies which are designed to reduce the risk of harm to citizens presented by content on regulated services;
(f) the extent to which providers of regulated services demonstrate, in a way that is transparent and accountable, that they are complying with their duties set out in Chapter 2, 3, 4 or 5 of Part 3, Chapter 1 of Part 4, or Part 5 of the Online Safety Act 2022.”

(5) After subsection (5) insert—

(5A) Subsection (4)(c) does not apply in relation to the carrying out of any of OFCOM’s online safety functions.

(6) After subsection (6) insert—

(6ZA) Where it appears to OFCOM, in relation to the carrying out of any of their online safety functions, that any of their general duties conflict with their duty under section 24, priority must be given to their duty under that section.

(7) In subsection (14), at the appropriate places insert—

content on regulated services” means—
(a) regulated user-generated content present on regulated services,
(b) search content of regulated services,
(c) fraudulent advertisements present on regulated services, and
(d) regulated provider pornographic content present on regulated services;”;

online safety functions” has the meaning given by section 188 of the Online Safety Act 2022, except that it does not include OFCOM’s general duties;

(8) After subsection (14) insert—

(15) In this section the following terms have the same meaning as in the Online Safety Act 2022—
“content” (see section 189 of that Act);
“fraudulent advertisement” (see sections 34 and 35 of that Act);
“harm” (see section 187 of that Act);
“provider”, in relation to a regulated service (see section 180 of that Act);
“regulated user-generated content” (see section 49 of that Act);
“regulated provider pornographic content” (see section 66 of that Act);
“regulated service” (see section 3 of that Act);
“search content” (see section 51 of that Act).”

(9) In section 6 of the Communications Act (duties to review regulatory burdens)—

(a) in subsection (2), after “this section” insert “(except their online safety functions)”, and

(b) after subsection (10) insert—

(11) In this section “online safety functions” has the same meaning as in section 3.

78 Duties in relation to strategic priorities¶

(1) This section applies where a statement has been designated under section 143(1) (Secretary of State’s statement of strategic priorities).

(2) OFCOM must have regard to the statement when carrying out their online safety functions.

(3) Within the period of 40 days beginning with the day on which the statement is designated, or such longer period as the Secretary of State may allow, OFCOM must—

(a) explain in writing what they propose to do in consequence of the statement, and

(b) publish a copy of that explanation.

(4) OFCOM must, as soon as reasonably practicable after the end of—

(a) the period of 12 months beginning with the day on which the first statement is designated under section 143(1), and

(b) every subsequent period of 12 months,

publish a review of what they have done during the period in question in consequence of the statement.

79 Duty to carry out impact assessments¶

(1) Section 7 of the Communications Act (duty to carry out impact assessments) is amended as follows.

(2) In subsection (2), at the beginning insert “Subject to subsection (2A),”.

(3) After subsection (2) insert—

(2A) A proposal to do any of the following is important for the purposes of this section—
(a) to prepare a code of practice under section 37 of the Online Safety Act 2022;
(b) to prepare amendments of such a code of practice; or
(c) to prepare a code of practice as a replacement for such a code of practice.”

(4) After subsection (4) insert—

(4A) An assessment under subsection (3)(a) that relates to a proposal mentioned in subsection (2A) must include an assessment of the likely impact of implementing the proposal on small businesses and micro businesses.
(4B) An assessment under subsection (3)(a) that relates to a proposal to do anything else for the purposes of, or in connection with, the carrying out of OFCOM’s online safety functions (within the meaning of section 188 of the Online Safety Act 2022) must, so far as the proposal relates to such functions, include an assessment of the likely impact of implementing the proposal on small businesses and micro businesses.”

Chapter 2 Register of categories of regulated user-to-user services and regulated search services¶

80 Meaning of threshold conditions etc¶

(1) Schedule 10 contains provision about regulations specifying the threshold conditions that a Part 3 service must meet to be included in the relevant part of the register established by OFCOM under section 81, and associated provision about the publication of OFCOM’s advice.

(2) In this Chapter, “Category 1 threshold conditions”, “Category 2A threshold conditions” and “Category 2B threshold conditions” have the same meaning as in Schedule 10 (see paragraph 1(1), (2) and (3) of that Schedule).

(3) For the purposes of this Chapter—

(a) a regulated user-to-user service meets the Category 1 threshold conditions if those conditions are met in relation to the user-to-user part of the service;

(b) a regulated search service or a combined service meets the Category 2A threshold conditions if those conditions are met in relation to the search engine of the service;

(c) a regulated user-to-user service meets the Category 2B threshold conditions if those conditions are met in relation to the user-to-user part of the service;

(d) references to OFCOM assessing a service (to determine if it meets, or no longer meets, the relevant threshold conditions) are accordingly to be read as references to OFCOM assessing the relevant part (or parts) of a service.

81 Register of categories of certain Part 3 services¶

(1) As soon as reasonably practicable after the first regulations under Schedule 10 come into force, OFCOM must comply with subsections (2) to (4)³.

(2) OFCOM must establish a register of particular categories of Part 3 services with—

(a) one part for regulated user-to-user services meeting the Category 1 threshold conditions,

(b) one part for regulated search services and combined services meeting the Category 2A threshold conditions, and

(3) OFCOM must assess Part 3 services, as follows—

(a) OFCOM must assess each regulated user-to-user service which they consider is likely to meet the Category 1 threshold conditions, to determine whether the service does, or does not, meet those conditions;

(b) OFCOM must assess each regulated search service and combined service which they consider is likely to meet the Category 2A threshold conditions, to determine whether the service does, or does not, meet those conditions;

(c) OFCOM must assess each regulated user-to-user service which they consider is likely to meet the Category 2B threshold conditions, to determine whether the service does, or does not, meet those conditions.

(4) If OFCOM consider that a service meets the relevant threshold conditions, they must add entries relating to that service to the relevant part of the register established under subsection (2).

(5) But—

(a) if OFCOM consider that a regulated user-to-user service meets the Category 1 threshold conditions and the Category 2B threshold conditions (only), entries relating to that service are to be added to the part of the register established under subsection (2)(a) (only);

(b) if OFCOM consider that a combined service meets the Category 1 threshold conditions, the Category 2A threshold conditions and the Category 2B threshold conditions, entries relating to that service are to be added to the parts of the register established under subsection (2)(a) and (b) (only).

(6) If OFCOM consider that a combined service—

(a) meets the Category 2A threshold conditions, and

(b) meets either the Category 1 threshold conditions or the Category 2B threshold conditions (but not both),

entries relating to that service are to be added to the part of the register established under subsection (2)(b) and to the part of the register established under subsection (2)(a) or (c) (whichever applies).

(7) Each part of the register must contain—

(a) the name, and a description, of each service that, in OFCOM’s opinion, meets the relevant threshold conditions, and

(b) the name of the provider of each such service.

(8) OFCOM must publish the register.

(9) When assessing whether a Part 3 service does, or does not, meet the relevant threshold conditions, OFCOM must take such steps as are reasonably practicable to obtain or generate information or evidence for the purposes of the assessment.

(10) In this Act—

(a) a “Category 1 service” means a regulated user-to-user service for the time being included in the part of the register established under subsection (2)(a);

(b) a “Category 2A service” means a regulated search service or a combined service for the time being included in the part of the register established under subsection (2)(b);

(c) a “Category 2B service” means a regulated user-to-user service for the time being included in the part of the register established under subsection (2)(c).

82 Duty to maintain register¶

(1) If regulations are made under paragraph 1(1) of Schedule 10 which amend or replace regulations previously made under that provision, OFCOM must, as soon as reasonably practicable after the date on which the amending or replacement regulations come into force—

(a) assess each regulated user-to-user service which they consider is likely to meet the new Category 1 threshold conditions, to determine whether the service does, or does not, meet those conditions, and

(b) make any necessary changes to the register.

(2) If regulations are made under paragraph 1(2) of Schedule 10 which amend or replace regulations previously made under that provision, OFCOM must, as soon as reasonably practicable after the date on which the amending or replacement regulations come into force—

(a) assess each regulated search service and combined service which they consider is likely to meet the new Category 2A threshold conditions, to determine whether the service does, or does not, meet those conditions, and

(b) make any necessary changes to the register.

(3) If regulations are made under paragraph 1(3) of Schedule 10 which amend or replace regulations previously made under that provision, OFCOM must, as soon as reasonably practicable after the date on which the amending or replacement regulations come into force—

(a) assess each regulated user-to-user service which they consider is likely to meet the new Category 2B threshold conditions, to determine whether the service does, or does not, meet those conditions, and

(b) make any necessary changes to the register.

(4) At any other time, if OFCOM consider that a Part 3 service not included in a particular part of the register is likely to meet the threshold conditions relevant to that part, OFCOM must—

(a) assess the service accordingly, and

(b) (subject to section 81(5)) if they consider that the service meets the relevant conditions, add entries relating to that service to that part of the register.

(5) Nothing in subsection (3) or (4) requires OFCOM to assess a Category 1 service to determine whether the service meets the Category 2B threshold conditions.

(6) A provider of a Part 3 service included in the register may at any time request OFCOM to remove entries relating to that service from the register, or from a particular part of the register.

(7) If OFCOM are satisfied, on the basis of evidence submitted by a provider with such a request, that since the registration day there has been a change to the service or to regulations under paragraph 1 of Schedule 10 which appears likely to be relevant, OFCOM must—

(a) assess the service, and

(b) notify the provider of OFCOM’s decision.

(8) OFCOM must remove entries relating to a Part 3 service from the relevant part of the register if, following an assessment of the service, they consider that it no longer meets the threshold conditions relevant to that part.

(9) Section 81(9) applies to an assessment under this section as it applies to an assessment under section 81.

(10) OFCOM must re-publish the register each time a change is made to it.

(11) See section 138 for provision about appeals against a decision to include a service in the register (or in a particular part of the register), or not to remove a service from the register (or from a particular part of the register).

(12) In this section—

“the register” means the register established under section 81;

“the registration day”, in relation to a Part 3 service, means—

(a) the day on which entries relating to the service were added to the register, or to the particular part of the register in question, or

(b) if later, the day on which OFCOM last completed an assessment of the service under subsection (1), (2), (3) or (7).

Chapter 3 Risk assessments of regulated user-to-user services and regulated search¶

SERVICES

83 OFCOM’s register of risks, and risk profiles, of Part 3 services¶

(1) OFCOM must carry out risk assessments to identify and assess the following risks of harm presented by Part 3 services of different kinds—

(a) the risk of harm to individuals in the United Kingdom presented by illegal content;

(b) the risk of harm to children in the United Kingdom, in different age groups, presented by content that is harmful to children;

(c) the risk of harm to adults in the United Kingdom presented by content that is harmful to adults present on regulated user-to-user services.

(2) The risk assessments must, among other things, identify characteristics of different kinds of Part 3 services that are relevant to such risks of harm, and assess the impact of those kinds of characteristics on such risks.

(3) OFCOM—

(a) may combine assessment of any or all of the risks of harm mentioned in subsection (1), or may carry out separate assessments of those risks;

(b) in the case of the risks of harm mentioned in subsection (1)(a) and (b), may assess regulated user-to-user services and regulated search services separately or together.

(4) The findings of each risk assessment are to be reflected, as soon as reasonably practicable after completion, in a register of risks of Part 3 services prepared and published by OFCOM.

(5) As soon as reasonably practicable after completing their assessment of a risk of harm mentioned in a particular paragraph of subsection (1), OFCOM must prepare risk profiles for Part 3 services which relate to that risk of harm.

(6) But in preparing the risk profiles which relate to the risk of harm mentioned in subsection (1)(c), OFCOM must not take into account anything relating to non- designated content that is harmful to adults.

(7) For the purposes of the risk profiles, OFCOM may group Part 3 services together in whichever way they consider appropriate, taking into account—

(a) the characteristics of the services, and

(b) the risk levels and other matters identified in the relevant risk assessment.

(8) OFCOM must publish risk profiles prepared under this section.

(9) OFCOM must from time to time review and revise the risk assessments and risk profiles so as to keep them up to date.

(10) References in this section to Part 3 services—

(a) in the case of a risk assessment or risk profiles which relate only to regulated user-to-user services or to regulated search services, are to be read as references to the kind of service in question;

(b) in the case of a risk assessment or risk profiles which relate only to the risk of harm mentioned in subsection (1)(c), are to be read as references to regulated user-to-user services.

(11) References in this section to regulated search services include references to the search engine of combined services.

(12) In this section the “characteristics” of a service include its functionalities, user base, business model, governance and other systems and processes.

(13) In this section—

“content that is harmful to adults” and “priority content that is harmful to adults” have the same meaning as in Part 3 (see section 54);

“content that is harmful to children” has the same meaning as in Part 3 (see section 53);

“illegal content” has the same meaning as in Part 3 (see section 52);

“non-designated content that is harmful to adults” means content that is harmful to adults other than priority content that is harmful to adults.

84 OFCOM’s guidance about risk assessments¶

(1) As soon as reasonably practicable after OFCOM have published the first risk profiles relating to the risk of harm from illegal content, OFCOM must produce guidance to assist providers of Part 3 services in complying with their duties to carry out illegal content risk assessments under section 8 or 23.

(2) As soon as reasonably practicable after OFCOM have published the first risk profiles relating to the risk of harm to children, OFCOM must produce guidance to assist providers of Part 3 services in complying with their duties to carry out children’s risk assessments under section 10 or 25.

(3) As soon as reasonably practicable after OFCOM have published the first risk profiles relating to the risk of harm to adults, OFCOM must produce guidance to assist providers of Category 1 services in complying with their duties to carry out adults’ risk assessments under section 12.

(4) Before producing any guidance under this section (including revised or replacement guidance), OFCOM must consult the Information Commissioner.

(5) OFCOM must revise guidance under this section from time to time in response to further risk assessments under section 83 or to revisions of the risk profiles.

(6) OFCOM must publish guidance under this section (and any revised or replacement guidance).

(7) If the risk profiles mentioned in subsection (1) or (2) relate to regulated user-to- user services only or to regulated search services only, those subsections are to be read as requiring the production of guidance relating only to regulated user- to-user services or to regulated search services, as the case may be.

(8) References in subsection (7) to regulated search services include references to the search engine of combined services.

(9) In this section—

“risk of harm from illegal content” means the risk of harm mentioned in section 83(1)(a);

“risk of harm to children” means the risk of harm mentioned in section 83(1)(b);

“risk of harm to adults” means the risk of harm mentioned in section 83(1)(c);

“risk profiles” means risk profiles prepared under section 83.

Chapter 4 Information¶

Information power and information notices¶

85 Power to require information¶

(1) OFCOM may by notice under this subsection (an “information notice”) require a person within subsection (4) to provide them with any information that they require for the purpose of exercising, or deciding whether to exercise, any of their online safety functions.

(2) The power conferred by subsection (1) includes power to require a person within subsection (4) to obtain or generate information.

(3) But the power conferred by subsection (1) must be exercised in a way that is proportionate to the use to which the information is to be put in the exercise of OFCOM’s functions.

(4) The persons within this subsection are—

(a) a provider of a user-to-user service or a search service,

(b) a provider of an internet service on which regulated provider pornographic content is published or displayed,

(c) a person who provides an ancillary service (within the meaning of section 123) in relation to a regulated service (see subsections (11) and (12) of that section),

(d) a person who provides an access facility (within the meaning of section 125) in relation to a regulated service (see subsections (10) and (11) of that section),

(e) a person who was within any of paragraphs (a) to (d)⁴ at a time to which the required information relates, and

(f) a person not within any of paragraphs (a) to (e)⁵ who appears to OFCOM to have, or to be able to generate or obtain, information required by them as mentioned in subsection (1).

(5) The information that may be required by OFCOM under subsection (1) includes, in particular, information that they require for any one or more of the following purposes—

(a) the purpose of assessing compliance with—

(i) any duty or requirement set out in Chapter 2, 3, 4 or 5 of Part 3,

(ii) any duty set out in section 57 (user identity verification),

(iii) any requirement under section 59 (reporting CSEA content),

(iv) any requirement relating to transparency reporting (see section 64(3) and (4)), or

(v) any duty set out in section 68 (provider pornographic content);

(b) the purpose of assessing compliance with a requirement under section 70 (duty to notify OFCOM in relation to the charging of fees);

(c) the purpose of a consultation about a threshold figure as mentioned in section 73 (threshold figure for the purposes of charging fees);

(d) the purpose of ascertaining the amount of a person’s qualifying worldwide revenue for the purposes of—

(i) section 71 (duty to pay fees), or

(ii) paragraph 4 or 5 of Schedule 12 (amount of penalties etc);

(e) the purpose of assessing compliance with any requirements imposed on a person by—

(i) a notice under section 103(1) (notices to deal with terrorism content and CSEA content), or

(ii) a confirmation decision;

(f) the purpose of assessing the accuracy and effectiveness of technology required to be used by—

(i) a notice under section 103(1), or

(ii) a confirmation decision;

(g) the purpose of dealing with complaints made to OFCOM under section 140 (super-complaints);

(h) the purpose of OFCOM’s advice to the Secretary of State about provision to be made by regulations under paragraph 1 of Schedule 10 (threshold conditions for categories of Part 3 services);

(i) the purpose of determining whether a Part 3 service meets threshold conditions specified in regulations under paragraph 1 of Schedule 10;

(j) the purpose of preparing a code of practice under section 37;

(k) the purpose of preparing guidance in relation to online safety matters;

(l) the purpose of carrying out research, or preparing a report, in relation to online safety matters;

(m) the purpose of complying with OFCOM’s duty under section 11 of the Communications Act, so far as relating to regulated services (duty to promote media literacy).

(6) See also section 87 (power to include a requirement to name a senior manager).

(7) The power conferred by subsection (1) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings.

(8) In this section—

“information” includes documents, and any reference to providing information includes a reference to producing a document (and see also section 86(9));

“regulated provider pornographic content” and “published or displayed” have the same meaning as in Part 5 (see section 66).

86 Information notices¶

(1) An information notice may require information in any form (including in electronic form).

(2) An information notice must—

(a) specify or describe the information to be provided,

(b) specify why OFCOM require the information,

(d) contain information about the consequences of not complying with the notice.

(3) An information notice must specify when the information must be provided (which may be on or by a specified date, within a specified period, or at specified intervals).

(4) An information notice may specify a place at which, and a person to whom, information is to be provided.

(5) A person to whom a document is produced in response to an information notice may—

(a) take copies of, or extracts from, the document;

(b) require the person producing the document, or a person who is or was an officer of that person, or (in the case of a partnership) a person who is or was a partner, to give an explanation of it.

(6) A person to whom an information notice is given has a duty—

(a) to provide the information in accordance with the requirements of the notice, and

(b) to ensure that the information provided is accurate in all material respects.

(7) OFCOM may cancel an information notice by notice to the person to whom it was given.

(8) In this section—

“information” includes documents, and any reference to providing information includes a reference to producing a document;

“officer”, in relation to an entity, includes a director, a manager, an associate, a secretary or, where the affairs of the entity are managed by its members, a member.

(9) In relation to information recorded otherwise than in a legible form, references in this section to producing a document are to producing a copy of the information—

(a) in a legible form, or

(b) in a form from which it can readily be produced in a legible form.

87 Requirement to name a senior manager¶

(1) This section applies where—

(a) OFCOM give a provider of a regulated service an information notice, and

(b) the provider is an entity.

(2) OFCOM may include in the information notice a requirement that the provider must name, in their response to the notice, an individual who the provider considers to be a senior manager of the entity and who may reasonably be expected to be in a position to ensure compliance with the requirements of the notice.

(3) If OFCOM impose a requirement to name an individual, the information notice must—

(a) require the provider to inform such an individual, and

(b) include information about the consequences for such an individual of the entity’s failure to comply with the requirements of the notice (see section 93).

(4) An individual is a “senior manager” of an entity if the individual plays a significant role in—

(a) the making of decisions about how the entity’s relevant activities are to be managed or organised, or

(b) the actual managing or organising of the entity’s relevant activities.

(5) An entity’s “relevant activities” are activities relating to the entity’s compliance with the regulatory requirements imposed by this Act in connection with the regulated service to which the information notice in question relates.

Skilled persons' reports¶

88 Reports by skilled persons¶

(1) OFCOM may exercise the powers in this section where they consider that it is necessary to do so for either or both of the following purposes—

(a) assisting OFCOM in identifying and assessing a failure, or possible failure, by a provider of a regulated service to comply with a relevant requirement, or

(b) developing OFCOM’s understanding of—

(i) the nature and level of risk of a provider of a regulated service failing to comply with a relevant requirement, and

(ii) ways to mitigate such a risk.

(2) But the powers in this section may be exercised for a purpose mentioned in subsection (1)(b) only where OFCOM consider that the provider in question may be at risk of failing to comply with a relevant requirement.

(3) OFCOM may appoint a skilled person to provide them with a report about matters relevant to the purpose for which the powers under this section are exercised (“the relevant matters”), and, where OFCOM make such an appointment, they must notify the provider about the appointment and the relevant matters to be explored in the report.

(4) Alternatively, OFCOM may give a notice to the provider—

(a) requiring the provider to appoint a skilled person to provide OFCOM with a report in such form as may be specified in the notice, and

(b) specifying the relevant matters to be explored in the report.

(5) References in this section to a skilled person are to a person—

(a) appearing to OFCOM to have the skills necessary to prepare a report about the relevant matters, and

(b) where the appointment is to be made by the provider, nominated or approved by OFCOM.

(6) It is the duty of—

(a) the provider of the service (“P”),

(b) any person who works for (or used to work for) P, or is providing (or used to provide) services to P related to the relevant matters, and

to give the skilled person all such assistance as the skilled person may reasonably require to prepare the report.

(7) The provider of the service is liable for the payment, directly to the skilled person, of the skilled person’s remuneration and expenses relating to the preparation of the report.

(8) Subsections (9) to (11)³ apply in relation to an amount due to a skilled person under subsection (7).

(9) In England and Wales, such an amount is recoverable—

(a) if the county court so orders, as if it were payable under an order of that court;

(b) if the High Court so orders, as if it were payable under an order of that court.

(10) In Scotland, such an amount may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(11) In Northern Ireland, such an amount is recoverable—

(a) if a county court so orders, as if it were payable under an order of that court;

(b) if the High Court so orders, as if it were payable under an order of that court.

(12) In this section “relevant requirement” means—

(a) a duty or requirement set out in any of the following—

(i) section 8, 10, 12, 23 or 25 (risk assessments);

(ii) section 9 or 24 (illegal content);

(iii) section 11 or 26 (children’s online safety);

(iv) section 13 (adults’ online safety);

(v) section 14 (user empowerment);

(vi) section 17 or 27 (content reporting);

(vii) section 18 or 28 (complaints procedures);

(viii) section 20 or 30 (record-keeping and review);

(ix) section 32 (children’s access assessments);

(x) section 34 or 35 (fraudulent advertising);

(xi) section 57 (user identity verification);

(xii) section 59 (reporting CSEA content);

(xiii) section 64(3) or (4) (transparency reports);

(xiv) section 68(2) (children’s access to pornographic content);

(b) a requirement under section 70 to notify OFCOM in connection with the charging of fees (see subsections (1), (3) and (5) of that section); or

Investigations and interviews¶

89 Investigations¶

(1) If OFCOM open an investigation into whether a provider of a regulated service has failed, or is failing, to comply with any requirement mentioned in subsection (2), the provider must co-operate fully with the investigation.

(2) The requirements are—

(a) a requirement imposed by a notice under section 103(1) (notices to deal with terrorism content and CSEA content), and

(b) an enforceable requirement as defined in section 111 (except the requirement in subsection (1) of this section).

90 Power to require interviews¶

(1) The power conferred by this section is exercisable by OFCOM for the purposes of an investigation that they are carrying out into the failure, or possible failure, of a provider of a regulated service to comply with a relevant requirement.

(2) OFCOM may give an individual within subsection (4) a notice requiring the individual—

(a) to attend at a time and place specified in the notice, and

(b) to answer questions and provide explanations about any matter relevant to the investigation.

(3) A notice under this section must—

(a) indicate the subject matter and purpose of the interview, and

(b) contain information about the consequences of not complying with the notice.

(4) The individuals within this subsection are—

(a) if the provider of the service is an individual or individuals, that individual or those individuals,

(b) an officer of the provider of the service,

(d) an employee of the provider of the service, and

(e) an individual who was within any of paragraphs (a) to (d)⁴ at a time to which the required information or explanation relates.

(5) If OFCOM give a notice to an individual within subsection (4)(b), (c) or (d), they must give a copy of the notice to the provider of the service.

(6) An individual is not required under this section to disclose information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings.

(7) In this section—

“officer”, in relation to an entity, includes a director, a manager, an associate, a secretary or, where the affairs of the entity are managed by its members, a member;

“relevant requirement” has the meaning given by section 88(12).

Powers of entry, inspection and audit¶

91 Powers of entry, inspection and audit¶

Schedule 11 makes provision about—

(a) OFCOM’s powers of entry and inspection, and

(b) the carrying out of audits by OFCOM.

Information offences and penalties¶

92 Offences in connection with information notices¶

(1) A person commits an offence if the person fails to comply with a requirement of an information notice.

(2) It is a defence for a person charged with an offence under subsection (1) to show that—

(a) it was not reasonably practicable to comply with the requirements of the information notice at the time required by the notice, but

(b) the person has subsequently taken all reasonable steps to comply with those requirements.

(3) A person commits an offence if, in response to an information notice—

(a) the person provides information that is false in a material respect, and

(b) at the time the person provides it, the person knows that it is false in a material respect or is reckless as to whether it is false in a material respect.

(4) A person commits an offence if, in response to an information notice, the person—

(a) provides information which is encrypted such that it is not possible for OFCOM to understand it, or produces a document which is encrypted such that it is not possible for OFCOM to understand the information it contains, and

(b) the person’s intention was to prevent OFCOM from understanding such information.

(5) A person commits an offence if—

(a) the person suppresses, destroys or alters, or causes or permits the suppression, destruction or alteration of, any information required to be provided, or document required to be produced, by an information notice, and

(b) the person’s intention was to prevent OFCOM from being provided with the information or document or (as the case may be) from being provided with it as it was before the alteration.

(6) The reference in subsection (5) to suppressing information or a document includes a reference to destroying the means of reproducing information recorded otherwise than in a legible form.

(7) Offences under this section may be committed only in relation to an information notice which—

(a) relates to—

(i) a user-to-user service,

(ii) a search service, or

(iii) an internet service on which regulated provider pornographic content is published or displayed; and

(b) is given to the provider of that service.

(8) If a person is convicted of an offence under this section, the court may, on an application by the prosecutor, make an order requiring the person to comply with a requirement of an information notice within such period as may be specified by the order.

(9) See also section 163 (supplementary provision about defences).

(10) In this section, “regulated provider pornographic content” and “published or displayed” have the same meaning as in Part 5 (see section 66).

93 Senior managers’ liability: information offences¶

(1) In this section “an individual named as a senior manager of an entity” means an individual who, as required by an information notice, is named as a senior manager of an entity in a response to that notice (see section 87).

(2) An individual named as a senior manager of an entity commits an offence if—

(a) the entity commits an offence under section 92(1) (failure to comply with information notice), and

(b) the individual has failed to take all reasonable steps to prevent that offence being committed.

(3) It is a defence for an individual charged with an offence under subsection (2) to show that the individual was a senior manager within the meaning of section 87 for such a short time after the information notice in question was given that the individual could not reasonably have been expected to take steps to prevent that offence being committed.

(4) An individual named as a senior manager of an entity commits an offence if—

(a) the entity commits an offence under section 92(3) (false information), and

(b) the individual has failed to take all reasonable steps to prevent that offence being committed.

(5) An individual named as a senior manager of an entity commits an offence if—

(a) the entity commits an offence under section 92(4) (encrypted information), and

(b) the individual has failed to take all reasonable steps to prevent that offence being committed.

(6) An individual named as a senior manager of an entity commits an offence if—

(a) the entity commits an offence under section 92(5) (destruction etc of information), and

(b) the individual has failed to take all reasonable steps to prevent that offence being committed.

(7) It is a defence for an individual charged with an offence under subsection (4), (5) or (6) to show that the individual was not a senior manager within the meaning of section 87 at the time at which the act constituting the offence occurred.

(8) It is a defence for an individual charged with an offence under this section to show that the individual had no knowledge of being named as a senior manager in a response to the information notice in question.

(9) See also section 163 (supplementary provision about defences).

94 Offences in connection with notices under Schedule 11¶

(1) A person commits an offence if the person fails without reasonable excuse to comply with a requirement of an audit notice.

(2) A person commits an offence if, in response to an audit notice—

(a) the person provides information that is false in a material respect, and

(b) at the time the person provides it, the person knows that it is false in a material respect or is reckless as to whether it is false in a material respect.

(3) A person commits an offence if—

(b) the person’s intention was to prevent OFCOM from being provided with the information or document or (as the case may be) from being provided with it as it was before the alteration.

(4) The reference in subsection (3) to suppressing information or a document includes a reference to destroying the means of reproducing information recorded otherwise than in a legible form.

(5) Subsection (3) applies to—

(a) a notice under paragraph 3 of Schedule 11 (information required for inspection), and

(b) an audit notice (see paragraph 4 of that Schedule).

(6) If a person is convicted of an offence under this section, the court may, on an application by the prosecutor, make an order requiring the person, within such period as may be specified by the order, to comply with a requirement of a notice under paragraph 3 of Schedule 11 or an audit notice (as the case may be).

95 Other information offences¶

(1) A person commits an offence if the person intentionally obstructs or delays a person in the exercise of the power conferred by section 86(5)(a) (copying a document etc).

(2) A person commits an offence if the person fails without reasonable excuse to comply with a requirement under section 90 (interviews).

(3) A person commits an offence if, in purported compliance with a requirement under section 90—

(a) the person provides information that is false in a material respect, and

(b) at the time the person provides it, the person knows that it is false in a material respect or is reckless as to whether it is false in a material respect.

(4) If a person is convicted of an offence under this section, the court may, on an application by the prosecutor, make an order requiring the person, within such period as may be specified by the order, to permit the making of a copy of a document, or to comply with a requirement under section 90 (as the case may be).

96 Penalties for information offences¶

(1) A person who commits an offence under section 92(1), 93(2) or 94(1) is liable—

(a) on summary conviction in England and Wales, to a fine;

(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;

(2) A person who commits an offence under section 92(3), (4) or (5), 93(4), (5) or (6), 94(2) or (3) or 95(1) is liable—

(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum summary term for either-way offences or a fine (or both);

(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);

(d) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).

(3) A person who commits an offence under section 95(2) or (3) is liable—

(a) on summary conviction in England and Wales, to a fine;

(b) on summary conviction in Scotland, to a fine not exceeding level 5 on the standard scale;

Disclosure of information¶

97 Co-operation and disclosure of information: overseas regulators¶

(1) OFCOM may co-operate with an overseas regulator, including by disclosing online safety information to that regulator, for the purposes of—

(a) facilitating the exercise by the overseas regulator of any of that regulator’s online regulatory functions, or

(b) criminal investigations or proceedings relating to a matter to which the overseas regulator’s online regulatory functions relate.

(2) The power conferred by subsection (1) applies only in relation to an overseas regulator for the time being specified in regulations made by the Secretary of State.

(3) Where information is disclosed to a person in reliance on subsection (1), the person may not—

(a) use the information for a purpose other than the purpose for which it was disclosed, or

(b) further disclose the information,

except with OFCOM’s consent (which may be general or specific) or in accordance with an order of a court or tribunal.

(4) Except as provided by subsection (5), a disclosure of information under subsection (1) does not breach—

(a) any obligation of confidence owed by the person making the disclosure, or

(b) any other restriction on the disclosure of information (however imposed).

(5) Subsection (1) does not authorise a disclosure of information that—

(a) would contravene the restriction imposed by section 99 (intelligence service information),

(b) would contravene the data protection legislation (but in determining whether a disclosure would do so, the power conferred by that subsection is to be taken into account), or

(6) Section 18 of the Anti-terrorism, Crime and Security Act 2001 (restriction on disclosure of information for overseas purposes) has effect in relation to a disclosure authorised by subsection (1)(b) as it has effect in relation to a disclosure authorised by any of the provisions to which section 17 of that Act applies.

(7) In this section—

“online regulatory functions”, in relation to an overseas regulator, means functions of that regulator which correspond to OFCOM’s online safety functions;

“online safety information” means information held by OFCOM in connection with any of OFCOM’s online safety functions;

“overseas regulator” means a person exercising functions in a country outside the United Kingdom which correspond to any of OFCOM’s online safety functions;

“the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).

98 Disclosure of information¶

(1) Section 393 of the Communications Act (general restrictions on disclosure of information) is amended as follows.

(2) In subsection (1)—

(a) at the end of paragraph (c) omit “or”,

(b) at the end of paragraph (d) insert “or”, and

(e) the Online Safety Act 2022,

(3) In subsection (2)(e), after “this Act” insert “or the Online Safety Act 2022”.

(4) In subsection (6)(a), after “390” insert “, or under section 128 of or Schedule 10 to the Online Safety Act 2022”.

(5) In subsection (6)(b), at the end insert “or the Online Safety Act 2022”.

99 Intelligence service information¶

(1) OFCOM may not disclose information received (directly or indirectly) from, or that relates to, an intelligence service unless the intelligence service consents to the disclosure.

(2) If OFCOM have disclosed information described in subsection (1) to a person, the person must not further disclose the information unless the intelligence service consents to the disclosure.

(3) If OFCOM would contravene subsection (1) by publishing in its entirety—

(a) a statement required to be published by section 43(5), or

(b) a report mentioned in section 137(5),

OFCOM must, before publication, remove or obscure the information which by reason of subsection (1) they must not disclose.

(4) In this section—

“information” means information held by OFCOM in connection with an online safety matter;

“intelligence service” means—

(a) the Security Service,

(b) the Secret Intelligence Service, or

100 Provision of information to the Secretary of State¶

(1) Section 24B of the Communications Act (provision of information to assist in formulation of policy) is amended as follows.

(2) In subsection (2)—

(a) at the end of paragraph (d) omit “or”,

(b) at the end of paragraph (e) insert “or”, and

(f) the Online Safety Act 2022,

(3) After subsection (2) insert—

(3) But subsection (2) does not apply to information—
(a) obtained by OFCOM—
(i) in the exercise of a power conferred by section 85 of the Online Safety Act 2022 for the purpose mentioned in subsection (5)(c) of that section (information in connection with a consultation about a threshold figure for the purposes of charging fees under that Act), or
(ii) in the exercise of a power conferred by section 146(5) of that Act (information in connection with circumstances presenting a threat), and
(b) reasonably required by the Secretary of State.”

101 Information for users of regulated services¶

(1) Section 26 of the Communications Act (publication of information and advice for consumers etc) is amended as follows.

(2) In subsection (2), after paragraph (d) insert—

(da) United Kingdom users of regulated services;

(3) After subsection (6) insert—

(7) In this section the following terms have the same meaning as in the Online Safety Act 2022—
“regulated service” (see section 3 of that Act);
“United Kingdom user” (see section 181 of that Act).”

102 Admissibility of statements¶

(1) An explanation given, or information provided, by a person in response to a requirement imposed under or by virtue of section 85 or 90 or paragraph 2(4)(e) or (f), 4(2)(g) or (h) or 7(d) of Schedule 11, may, in criminal proceedings, only be used in evidence against that person—

(a) on a prosecution for an offence under a provision listed in subsection (2), or

(b) on a prosecution for any other offence where—

(i) in giving evidence that person makes a statement inconsistent with that explanation or information, and

(ii) evidence relating to that explanation or information is adduced, or a question relating to it is asked, by that person or on that person’s behalf.

(2) Those provisions are—

(a) section 62(1),

(b) section 92(3),

(d) section 94(2),

(e) section 95(3),

(f) paragraph 18 of Schedule 11,

(g) section 5 of the Perjury Act 1911 (false statements made otherwise than on oath),

(h) section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath), and

(i) Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statutory declarations and other false unsworn statements).

Chapter 5 Regulated user-to-user services and regulated search services: notices to deal with terrorism content and CSEA content¶

103 Notices to deal with terrorism content or CSEA content (or both)¶

(1) If OFCOM consider that it is necessary and proportionate to do so, they may give a notice described in subsection (2), (3) or (4) relating to a regulated user- to-user service or a regulated search service to the provider of the service.

(2) A notice under subsection (1) that relates to a regulated user-to-user service is a notice requiring the provider of the service to do either or both of the following—

(a) use accredited technology to identify terrorism content communicated publicly by means of the service and to swiftly take down that content;

(b) use accredited technology to identify CSEA content, whether communicated publicly or privately by means of the service, and to swiftly take down that content.

(3) A notice under subsection (1) that relates to a regulated search service is a notice requiring the provider of the service to do either or both of the following—

(a) use accredited technology to identify search content of the service that is terrorism content and to swiftly take measures designed to secure, so far as possible, that search content of the service no longer includes terrorism content identified by the technology;

(b) use accredited technology to identify search content of the service that is CSEA content and to swiftly take measures designed to secure, so far as possible, that search content of the service no longer includes CSEA content identified by the technology.

(4) A notice under subsection (1) that relates to a combined service is a notice requiring the provider of the service to do any of the following—

(a) use accredited technology as described in subsection (2)(a) or (b), or both, in relation to the user-to-user part of the service;

(b) use accredited technology as described in subsection (3)(a) or (b), or both, in relation to the search engine of the service;

(c) use accredited technology as described in subsection (2)(a) or (b), or both, in relation to the user-to-user part of the service, and use accredited technology as described in subsection (3)(a) or (b), or both, in relation to the search engine.

(5) For the purposes of subsections (2) and (3), a requirement to take down terrorism or CSEA content, or to take measures to secure that search content does not include terrorism or CSEA content, may be complied with by the use of accredited technology alone or by means of the technology together with the use of human moderators to review terrorism or CSEA content (as the case may be) identified by the technology.

(6) See section 104 for provision about matters which OFCOM must consider before giving a notice under subsection (1).

(7) OFCOM may give a notice under subsection (1) to a provider relating to a service, or (in the case of a notice described in subsection (4)(a) or (b)) part of a service, only after giving a warning notice to the provider that they intend to give such a notice relating to that service or that part of it.

(8) The warning notice under subsection (7) must—

(a) contain details of the technology that OFCOM are considering requiring the provider to use,

(b) specify whether the technology is to be required in relation to terrorism content or CSEA content (or both),

(d) specify the period for which OFCOM are considering imposing the requirements (see section 105(6)),

(e) state that the provider may make representations to OFCOM (with any supporting evidence), and

(f) specify the period within which representations may be made.

(9) A notice under subsection (1) that relates to both the user-to-user part of a combined service and the search engine of the service (as described in subsection (4)(c)) may be given to the provider of the service only if—

(a) two separate warning notices have been given to the provider (one relating to the user-to-user part of the service and the other relating to the search engine), or

(b) a single warning notice relating to both the user-to-user part of the service and the search engine has been given to the provider.

(10) A notice under subsection (1) may not be given to a provider until the period allowed by the warning notice for the provider to make representations has expired.

(11) A notice under subsection (1) relating to terrorism content present on a service must identify the content, or parts of the service that include content, that OFCOM consider is communicated publicly on that service (see section 185).

(12) For the meaning of “accredited” technology, see section 105(9) and (10).

104 Matters relevant to a decision to give a notice under section 103(1)¶

(1) This section specifies the matters which OFCOM must particularly consider in deciding whether it is necessary and proportionate to give a notice under section 103(1) relating to a Part 3 service to the provider of the service.

(2) The matters are as follows—

(a) the kind of service it is;

(b) the functionalities of the service;

(d) in the case of a notice relating to a user-to-user service (or to the user- to-user part of a combined service), the prevalence of relevant content on the service, and the extent of its dissemination by means of the service;

(e) in the case of a notice relating to a search service (or to the search engine of a combined service), the prevalence of search content of the service that is relevant content;

(f) the level of risk of harm to individuals in the United Kingdom presented by relevant content, and the severity of that harm;

(g) the systems and processes used by the service which are designed to identify and remove relevant content;

(h) the extent to which the use of the specified technology would or might result in interference with users’ right to freedom of expression within the law;

(i) the level of risk of the use of the specified technology resulting in a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of the service (including, but not limited to, any such provision or rule concerning the processing of personal data);

(j) whether the use of any less intrusive measures than the specified technology would be likely to achieve a significant reduction in the amount of relevant content.

(3) The references to relevant content in subsection (2)(f) and (j) are to—

(a) in the case of a user-to-user service (or the user-to-user part of a combined service), relevant content present on the service;

(b) in the case of a search service (or the search engine of a combined service), search content of the service that is relevant content.

(4) In this section—

“relevant content” means terrorism content or CSEA content or both those kinds of content (depending on the kind, or kinds, of content in relation to which the specified technology is to operate);

“specified technology” means the technology to be specified in the notice under section 103(1).

105 Notices under section 103(1): supplementary¶

(1) In this section “a notice” means a notice under section 103(1) (including a further notice under that provision).

(2) If a provider is already using accredited technology in relation to the service in question, a notice may require the provider to use it more effectively (specifying the ways in which that must be done).

(3) A notice relating to a user-to-user service (or to the user-to-user part of a combined service) may also require a provider to operate an effective complaints procedure allowing for United Kingdom users to challenge the provider for taking down content which they have generated, uploaded or shared on the service.

(4) A notice relating to a search service (or to the search engine of a combined service) may also require a provider to operate an effective complaints procedure allowing for an interested person (see section 181(7)) to challenge measures taken or in use by the provider that result in content relating to that interested person no longer appearing in search results of the service.

(5) A notice must—

(a) give OFCOM’s reasons for their decision to give the notice,

(b) contain details of the requirements imposed by the notice,

(d) contain details about the manner in which the technology is to be implemented,

(e) specify a reasonable period for compliance with the notice,

(f) specify the period for which the notice is to have effect,

(g) contain details of the rights of appeal under section 139,

(h) contain information about when OFCOM intend to review the notice (see section 106), and

(i) contain information about the consequences of not complying with the notice (including information about the further kinds of enforcement action that it would be open to OFCOM to take).

(6) A notice may impose requirements for a period of up to 36 months beginning with the last day of the period specified in the notice in accordance with subsection (5)(e).

(7) A notice may impose requirements only in relation to the operation of a Part 3 service—

(a) in the United Kingdom, or

(b) as it affects United Kingdom users of the service.

(8) OFCOM may vary or revoke a notice given to a provider by notifying the provider to that effect.

(9) For the purposes of section 103 and this section, technology is “accredited” if it is accredited (by OFCOM or another person appointed by OFCOM) as meeting minimum standards of accuracy in the detection of terrorism content or CSEA content (as the case may be).

(10) Those minimum standards of accuracy must be such standards as are for the time being approved and published by the Secretary of State, following advice from OFCOM.

106 Review and further notice under section 103(1)¶

(1) This section applies where OFCOM have given a provider of a Part 3 service a notice under section 103(1).

(2) The power conferred by section 105(8) includes power to revoke the notice if there are reasonable grounds for believing that the provider is failing to comply with it.

(3) If a notice is revoked as mentioned in subsection (2), OFCOM may give the provider a further notice under section 103(1) if they consider that it is necessary and proportionate to do so (taking into account the matters mentioned in section 104).

(4) Except where a notice under section 103(1) is revoked as mentioned in subsection (2), OFCOM must, before the end of the period for which the notice has effect, carry out a review of the provider’s use of technology as required by the notice.

(5) The review must consider—

(a) the extent to which the technology specified in the notice has been used, and

(b) the effectiveness of its use.

(6) Following the review, and after consultation with the provider, OFCOM may give the provider a further notice under section 103(1) if they consider that it is necessary and proportionate to do so (taking into account the matters mentioned in section 104).

(7) If a further notice under section 103(1) is given, subsections (3) to (6)⁴ apply again.

(8) A further notice under section 103(1) may require the use of different accredited technology from an earlier notice under that provision.

(9) Section 103(7) to (10)⁴ (warning notice) do not apply in relation to a further notice under section 103(1).

107 OFCOM’s guidance about functions under this Chapter¶

(1) OFCOM must produce guidance for providers of Part 3 services about how OFCOM propose to exercise their functions under this Chapter.

(2) Before producing the guidance (including revised or replacement guidance), OFCOM must consult the Information Commissioner.

(3) OFCOM must keep the guidance under review.

(4) OFCOM must publish the guidance (and any revised or replacement guidance).

(5) In exercising their functions under this Chapter, or deciding whether to exercise them, OFCOM must have regard to the guidance for the time being published under this section.

108 OFCOM’s annual report¶

(1) OFCOM must produce and publish an annual report about—

(a) the exercise of their functions under this Chapter, and

(b) technology which meets, or is in the process of development so as to meet, minimum standards of accuracy (see subsections (9) and (10) of section 105) for the purposes of this Chapter.

(2) OFCOM must send a copy of the report to the Secretary of State, and the Secretary of State must lay it before Parliament.

(3) For further provision about reports under this section, see section 137.

109 Interpretation of this Chapter¶

In this Chapter—

“search content” has the same meaning as in Part 3 (see section 51);

“search results” has the meaning given by section 51(3);

“terrorism content” and “CSEA content” have the same meaning as in Part 3 (see section 52).

Chapter 6 Enforcement powers¶

Provisional notices and confirmation decisions¶

110 Provisional notice of contravention¶

(1) OFCOM may give a notice under this section (a “provisional notice of contravention”) relating to a regulated service to the provider of the service if they consider that there are reasonable grounds for believing that the provider has failed, or is failing, to comply with any enforceable requirement (see section 111) that applies in relation to the service.

(2) OFCOM may also give a provisional notice of contravention to a person on either of the grounds in subsection (3).

(3) The grounds are that—

(a) the person has been given an information notice and OFCOM consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with either of the duties set out in section 86(6) (duties in relation to information notices), or

(b) the person is required by a skilled person appointed under section 88 to give assistance to the skilled person, and OFCOM consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with the duty set out in subsection (6) of that section to give such assistance.

(4) A provisional notice of contravention given to a person must—

(a) specify the duty or requirement with which (in OFCOM’s opinion) the person has failed, or is failing, to comply, and

(b) give OFCOM’s reasons for their opinion that the person has failed, or is failing, to comply with it.

(5) A provisional notice of contravention may also contain details as mentioned in subsection (6) or (7), or both.

(6) A provisional notice of contravention may specify steps that OFCOM consider the person needs to take in order to—

(a) comply with the duty or requirement, or

(b) remedy the failure to comply with it.

(7) A provisional notice of contravention may state that OFCOM propose to impose a penalty on the person, and in such a case the notice must—

(a) state the reasons why OFCOM propose to impose a penalty,

(b) state whether OFCOM propose to impose a penalty of a single amount, a penalty calculated by reference to a daily rate, or both penalties (see section 117(1)),

(c) indicate the amount of a penalty that OFCOM propose to impose, including (in relation to a penalty calculated by reference to a daily rate) the daily rate and how the penalty would be calculated,

(d) in relation to a penalty calculated by reference to a daily rate, specify or describe the period for which OFCOM propose that the penalty should be payable, and

(e) state the reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account.

(8) A provisional notice of contravention given to a person must—

(a) state that the person may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice, and

(b) specify the period within which such representations may be made.

(9) A provisional notice of contravention may be given in respect of a failure to comply with more than one enforceable requirement.

(10) Where a provisional notice of contravention is given in respect of a continuing failure, the notice may be given in respect of any period during which the failure has continued, and must specify that period.

(11) Where a provisional notice of contravention is given to a person in respect of a failure to comply with a duty or requirement (“the first notice”), a further provisional notice of contravention in respect of a failure to comply with that same duty or requirement may be given to the person only—

(a) in respect of a separate instance of the failure after the first notice was given,

(b) where a period was specified in the first notice in accordance with subsection (10), in respect of the continuation of the failure after the end of that period, or

(c) if the first notice has been withdrawn (without a confirmation decision being given to the person in respect of the failure).

111 Requirements enforceable by OFCOM against providers of regulated services¶

(1) References in this Chapter to “enforceable requirements” are to—

(a) the duties or requirements set out in the provisions of this Act specified in the table in subsection (2), and

(b) the requirements mentioned in subsection (3).

(2) Here is the table—

ProvisionSubject matter Section 8Illegal content risk assessments Section 9Illegal content Section 10Children’s risk assessments Section 11Children’s online safety Section 12Adults’ risk assessments Section 13Adults’ online safety Section 14User empowerment Section 15Content of democratic importance Section 16Journalistic content ProvisionSubject matter Section 17Content reporting Section 18Complaints procedures Section 19Freedom of expression and privacy Section 20Record-keeping and review Section 23Illegal content risk assessments Section 24Illegal content Section 25Children’s risk assessments Section 26Children’s online safety Section 27Content reporting Section 28Complaints procedures Section 29Freedom of expression and privacy Section 30Record-keeping and review Section 32Children’s access assessments Section 34Fraudulent advertising Section 35Fraudulent advertising Section 57User identity verification Section 59Reporting CSEA content to NCA Section 64(3) and (4)Transparency reports Section 68Provider pornographic content Section 70Fees: notification of OFCOM Section 86(6)Information notices Section 88(6)Assistance to skilled person Section 89(1)Co-operation with investigation

(3) The requirements referred to in subsection (1)(b) are—

(a) requirements of a notice under section 88(4)(a) to appoint a skilled person;

(b) requirements of a notice given by virtue of section 146(3) (duty to make public statement);

(d) requirements imposed by a person acting—

(i) in the exercise of powers conferred by paragraph 2 of Schedule 11 (entry and inspection without warrant), or

(ii) in the execution of a warrant issued under paragraph 5 of that Schedule.

112 Confirmation decisions¶

(1) This section applies if—

(a) OFCOM have given a provisional notice of contravention to a person in relation to a failure to comply with a duty or requirement (or with duties or requirements), and

(b) the period allowed for representations has expired.

A duty or requirement to which the provisional notice of contravention relates is referred to in this section as a “notified requirement”.

(2) If, after considering any representations and evidence, OFCOM decide not to give the person a notice under this section, they must inform the person of that fact.

(3) If OFCOM are satisfied that the person has failed, or has been failing, to comply with a notified requirement, OFCOM may give the person a notice under this section (a “confirmation decision”) confirming that that is OFCOM’s opinion.

(4) A confirmation decision and a notice under section 103(1) may be given in respect of the same failure.

(5) A confirmation decision given to a person may—

(a) require the person to take steps as mentioned in section 113;

(b) require the person to pay a penalty as mentioned in section 117;

(6) See sections 114 and 115 for further provision which a confirmation decision may include in cases of failure to comply with duties about risk assessments or children’s access assessments.

113 Confirmation decisions: requirements to take steps¶

(1) A confirmation decision may require the person to whom it is given to take such steps as OFCOM consider appropriate (including steps relating to the use a system or process) for either or both of the following purposes—

(a) complying with a notified requirement;

(b) remedying the failure to comply with a notified requirement.

(2) But see section 116 for constraints on OFCOM’s power to include in a confirmation decision requirements as described in subsection (1) relating to the use of proactive technology.

(3) A confirmation decision may impose requirements as described in subsection (1) only in relation to the design or operation of a regulated service—

(a) in the United Kingdom, or

(b) as it affects United Kingdom users of the service.

(4) A confirmation decision that includes requirements as described in subsection (1) must—

(a) specify the steps that are required,

(b) give OFCOM’s reasons for their decision to impose those requirements,

(d) specify the period during which the failure to comply with a notified requirement has occurred, and whether the failure is continuing,

(e) specify a reasonable period within which each of the steps specified in the decision must be taken or, if a step requires the use of a system or process, a reasonable period within which the system or process must begin to be used (but see subsection (5) in relation to information duties),

(f) (if relevant) specify the period for which a system or process must be used,

(g) contain details of the rights of appeal under section 139, and

(h) contain information about the consequences of not complying with the requirements included in the decision (including information about the further kinds of enforcement action that it would be open to OFCOM to take).

(5) A confirmation decision that requires a person to take steps for the purpose of complying with an information duty may require the person to take those steps immediately.

(6) A person to whom a confirmation decision is given has a duty to comply with requirements included in the decision which are of a kind described in subsection (1).

(7) The duty under subsection (6) is enforceable in civil proceedings by OFCOM—

(a) for an injunction,

(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or

(8) In this section—

“information duty” means a duty set out in section 86(6);

“notified requirement” has the meaning given by section 112.

114 Confirmation decisions: risk assessments¶

(1) This section applies if—

(a) OFCOM are satisfied that a provider of a Part 3 service has failed to comply with a risk assessment duty,

(b) based on evidence resulting from OFCOM’s investigation into that failure, OFCOM have identified a risk of serious harm to individuals in the United Kingdom arising from a particular aspect of the service (“the identified risk”), and

(2) A confirmation decision given to the provider of the service—

(a) if the identified risk relates to illegal content, may include a determination that the duty set out in section 9(2) or 24(2) (as the case may be) applies as if an illegal content risk assessment carried out by the provider had identified that risk;

(b) if the identified risk relates to content that is harmful to children, may include a determination that the duty set out in section 11(2)(a) or 26(2)(a) (as the case may be) applies as if a children’s risk assessment carried out by the provider had identified that risk.

(3) A confirmation decision which includes a determination as mentioned in subsection (2) must—

(a) give details of the identified risk,

(b) specify the duty to which the determination relates, and

(c) specify the date by which measures (at the provider’s discretion) to comply with that duty must be taken or must begin to be used.

(4) A determination as mentioned in subsection (2) ceases to have effect on the date on which the provider of the service complies with the risk assessment duty with which the provider had previously failed to comply (and accordingly, from that date the duty to which the determination relates applies without the modification mentioned in that subsection).

(5) In this section—

“children’s risk assessment” has the meaning given by section 10 or 25 (as the case may be);

“content that is harmful to children” has the same meaning as in Part 3 (see section 53);

“illegal content” has the same meaning as in Part 3 (see section 52);

“illegal content risk assessment” has the meaning given by section 8 or 23 (as the case may be);

“risk assessment duty” means a duty set out in—

(a) section 8,

(b) section 10,

(d) section 25.

115 Confirmation decisions: children’s access assessments¶

(1) This section applies if OFCOM are satisfied that a provider of a Part 3 service has failed to comply with a duty set out in section 32 (duties about children’s access assessments).

(2) If OFCOM include in a confirmation decision a requirement to take steps relating to the carrying out of a children’s access assessment of a service, they must require that assessment to be completed within three months of the date of the confirmation decision.

(3) OFCOM may vary a confirmation decision which includes a requirement as mentioned in subsection (2) to extend the deadline for completion of a children’s access assessment.

(4) Subsection (5) applies if, based on evidence that OFCOM have about a service resulting from their investigation into compliance with a duty set out in section 32, OFCOM consider that—

(a) it is possible for children to access the service or a part of it, and

(b) the child user condition is met in relation to—

(i) the service, or

(ii) a part of the service that it is possible for children to access.

(5) OFCOM may include in the confirmation decision given to the provider of the service—

(a) a determination that the duties set out in sections 10 and 11, or (as the case may be) sections 25 and 26, must be complied with—

(i) from the date of the confirmation decision, or

(ii) from a later date specified in that decision;

(b) provision about the circumstances in which that determination may be treated as no longer applying in relation to the service.

(6) Subsection (4) is to be interpreted consistently with section 31.

(7) In this section, “children’s access assessment” has the meaning given by section 31.

116 Confirmation decisions: proactive technology¶

(1) This section sets out constraints on OFCOM’s power to include in a confirmation decision a requirement to take steps to use a kind, or one of the kinds, of proactive technology specified in the decision (a “proactive technology requirement”).

(2) A proactive technology requirement may be imposed in a confirmation decision only if the decision is given to the provider of a Part 3 service.

(3) A proactive technology requirement may be imposed in a confirmation decision only for the purpose of complying with, or remedying the failure to comply with, any of the duties set out in—

(a) section 9(2) or (3) (illegal content),

(b) section 11(2) or (3) (children’s online safety),

(d) section 26(2) or (3) (children’s online safety), or

(e) section 34(1) or 35(1) (fraudulent advertising).

(4) Proactive technology may be required to be used on or in relation to any Part 3 service or any part of such a service, but if and to the extent that the technology operates (or may operate) by analysing content that is user- generated content in relation to the service, or metadata relating to such content, the technology may not be required to be used except to analyse—

(a) user-generated content communicated publicly, and

(b) metadata relating to user-generated content communicated publicly.

(5) Before imposing a proactive technology requirement in relation to a service in a confirmation decision, OFCOM must particularly consider the matters mentioned in subsection (6), so far as they are relevant.

(6) The matters are as follows—

(a) the kind of service it is;

(b) the functionalities of the service;

(d) the prevalence of relevant content on the service and the extent of its dissemination by means of the service, or (as the case may be) the prevalence of search content of the service that is relevant content;

(e) the level of risk of harm to individuals in the United Kingdom presented by relevant content present on the service, or (as the case may be) search content of the service that is relevant content, and the severity of that harm;

(f) the degree of accuracy, effectiveness and lack of bias achieved by the kind of technology specified in the decision;

(g) the extent to which the use of the kind of proactive technology specified in the decision would or might result in interference with users’ right to freedom of expression within the law;

(h) the level of risk of the use of the kind of proactive technology specified in the decision resulting in a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of the service (including, but not limited to, any such provision or rule concerning the processing of personal data);

(i) whether the use of any less intrusive measures than the proactive technology specified in the decision would be likely to result in compliance with, or would be likely to effectively remedy the failure to comply with, the duty in question.

(7) A confirmation decision that imposes a proactive technology requirement on a provider may also impose requirements about review of the technology by the provider.

(8) A confirmation decision relating to a service which requires the use of technology of a kind mentioned in subsection (4) must identify the content, or parts of the service that include content, that OFCOM consider is communicated publicly on that service (see section 185).

(9) In this section—

“content that is harmful to children” has the same meaning as in Part 3 (see section 53);

“fraudulent advertisement” has the meaning given by section 34 or 35 (depending on the kind of service in question);

“illegal content” has the same meaning as in Part 3 (see section 52);

“relevant content” means illegal content, content that is harmful to children or content consisting of fraudulent advertisements, or any or all of those kinds of content (depending on the duties (as mentioned in subsection (3)) for the purposes of which the proactive technology requirement is imposed);

“search content” has the same meaning as in Part 3 (see section 51);

“user-generated content” has the meaning given by section 49 (see subsections (3) and (4) of that section).

117 Confirmation decisions: penalties¶

(1) A confirmation decision may require the person to whom it is given to do either or both of the following, depending on what was proposed in the provisional notice of contravention (see paragraph 3 of Schedule 12)—

(a) pay to OFCOM a penalty of a single amount in sterling determined by OFCOM (a “single penalty”) and specified in the confirmation decision;

(b) if the confirmation decision includes a requirement of the kind described in section 113(1)(a) in respect of a continuous failure to comply with a notified requirement, pay a daily rate penalty to OFCOM if that same failure continues after the compliance date.

(2) A “daily rate penalty” means a penalty of an amount in sterling determined by OFCOM and calculated by reference to a daily rate.

(3) A confirmation decision may impose separate single penalties for failure to comply with separate notified requirements specified in the decision.

(4) Where a provisional notice of contravention is given in respect of a period of continuing failure to comply with a notified requirement, no more than one single penalty may be imposed by a confirmation decision in respect of the period of failure specified in the provisional notice of contravention.

(5) A confirmation decision that imposes a penalty must—

(a) give OFCOM’s reasons for their decision to impose the penalty,

(b) specify each notified requirement to which the penalty relates,

(c) specify the period during which the failure to comply with a notified requirement has occurred, and whether the failure is continuing,

(d) state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,

(e) specify a reasonable period within which the penalty must be paid,

(f) contain details of the rights of appeal under section 139, and

(g) contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take).

(6) The period specified under subsection (5)(e) for the payment of a single penalty must be at least 28 days beginning with the day on which the confirmation decision is given.

(7) If a confirmation decision imposes a single penalty and a daily rate penalty, the information mentioned in subsection (5)(a), (b), (d) and (e) must be given in respect of each kind of penalty.

(8) As well as containing the information mentioned in subsection (5), a confirmation decision that imposes a daily rate penalty in respect of a continuous failure to comply with a notified requirement must—

(a) state the daily rate of the penalty and how the penalty is calculated;

(b) state that the person will be liable to pay the penalty if that same failure continues after the compliance date;

(c) state the date from which the penalty begins to be payable, which must not be earlier than the day after the compliance date;

(d) provide for the penalty to continue to be payable at the daily rate until—

(i) the date on which the notified requirement is complied with,

(ii) if the penalty is imposed in respect of a failure to comply with more than one notified requirement, the date on which the last of those requirements is complied with, or

(iii) an earlier date specified in the confirmation decision.

(9) In this section—

“compliance date”, in relation to a notified requirement, means—

(a) in a case where the confirmation decision requires steps to be taken immediately to comply with that requirement (see section 113(5)), the date of the confirmation decision;

(b) in any other case, the last day of the period specified in the confirmation decision in accordance with section 113(4)(e) for compliance with that requirement;

“notified requirement” has the meaning given by section 112.

Penalty notices etc¶

118 Penalty for failure to comply with confirmation decision¶

(1) This section applies if—

(a) OFCOM have given a confirmation decision to a person,

(b) the decision includes requirements of a kind described in section 113(1) (requirements to take steps),

(d) OFCOM have not imposed a daily rate penalty under section 117(1)(b) in respect of that failure.

(2) OFCOM may give the person a penalty notice under this section in respect of the failure to comply with the confirmation decision, requiring the person to pay to OFCOM a penalty of a single amount in sterling determined by OFCOM.

(3) But OFCOM may give such a notice to the person only after—

(a) notifying the person that they intend to give a penalty notice under this section, specifying the reasons for doing so and indicating the amount of the proposed penalty, and

(b) giving the person an opportunity to make representations.

(4) A penalty notice under this section must—

(a) give OFCOM’s reasons for their decision to impose the penalty,

(b) state the amount of the penalty,

(c) state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,

(d) specify the period within which the penalty must be paid,

(e) contain details of the rights of appeal under section 139, and

(f) contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take).

(5) The period specified under subsection (4)(d) must be at least 28 days beginning with the day on which the penalty notice is given.

119 Penalty for failure to comply with notice under section 103(1)¶

(1) This section applies if—

(a) OFCOM have given a notice under section 103(1) relating to a Part 3 service to the provider of that service (notices to deal with terrorism content and CSEA content), and

(b) at any time during the period for which the notice has effect, OFCOM are satisfied that the provider has failed, or is failing, to comply with the notice.

(2) OFCOM may give the provider a notice under this subsection stating that they propose to impose a penalty on the provider in respect of that failure.

(3) The provider may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice.

(4) Subsection (5) applies if—

(a) the period allowed for representations has expired, and

(b) OFCOM are still satisfied as to the failure mentioned in subsection (1).

(5) OFCOM may give the provider a penalty notice under this subsection requiring the provider to pay to OFCOM a penalty of an amount in sterling determined by OFCOM.

(6) The penalty may consist of any of the following, depending on what was specified in the notice about the proposed penalty—

(a) a single amount;

(b) an amount calculated by reference to a daily rate;

(7) See section 121 for information which must be included in notices under this section.

(8) Nothing in this section is to be taken to prevent OFCOM from giving the provider a further notice under section 103(1) (see section 106), as well as giving a penalty notice under subsection (5).

120 Non-payment of fee¶

(1) This section applies if—

(a) the provider of a regulated service is liable to pay a fee to OFCOM under section 71 in respect of the current charging year (within the meaning of that section) or a previous charging year, and

(b) in OFCOM’s opinion, the provider has not paid the full amount of the fee that the provider is liable to pay.

(2) OFCOM may give the provider a notice under this subsection specifying—

(a) the outstanding amount of the fee that OFCOM consider the provider is due to pay to them under section 71, and

(b) the period within which the provider must pay it.

(3) A notice under subsection (2)—

(a) may be given in respect of liabilities that relate to different charging years;

(b) may also state that OFCOM propose to impose a penalty on the provider.

(4) The provider may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice.

(5) Subsection (6) applies if—

(a) the notice under subsection (2) stated that OFCOM propose to impose a penalty,

(b) the period allowed for representations has expired, and

(6) OFCOM may give the provider a penalty notice under this subsection requiring the provider to pay to OFCOM a penalty of an amount in sterling determined by OFCOM.

(7) The penalty may consist of any of the following, depending on what was specified in the notice about the proposed penalty—

(a) a single amount;

(b) an amount calculated by reference to a daily rate;

(8) A penalty notice under subsection (6) may require the payment of separate single amounts in respect of liabilities that relate to different charging years.

(9) See section 121 for information which must be included in notices under this section.

(10) Nothing in this section affects OFCOM’s power to bring proceedings (whether before or after the imposition of a penalty by a notice under subsection (6)) for the recovery of the whole or part of an amount due to OFCOM under section 71.

(11) But OFCOM may not bring such proceedings unless a provider has first been given a notice under subsection (2) specifying the amount due to OFCOM.

121 Information to be included in notices under sections 119 and 120¶

(1) Subsection (2) applies in relation to—

(a) a notice under section 119(2), and

(b) a notice under section 120(2) stating that OFCOM propose to impose a penalty.

(2) Such a notice must—

(a) state the reasons why OFCOM propose to impose the penalty,

(b) state whether OFCOM propose that the penalty should consist of a single amount, an amount calculated by reference to a daily rate, or a combination of the two,

(c) indicate the amount of the proposed penalty, including (in relation to an amount calculated by reference to a daily rate) the daily rate and how the penalty would be calculated,

(d) in relation to an amount calculated by reference to a daily rate, specify or describe the period for which OFCOM propose that the amount should be payable,

(e) state the reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account, and

(f) specify the period within which representations in relation to the proposed penalty may be made.

(3) A penalty notice under section 119(5) or 120(6) must—

(a) give OFCOM’s reasons for their decision to impose the penalty,

(b) state whether the penalty consists of a single amount, an amount calculated by reference to a daily rate, or a combination of the two, and how it is calculated,

(d) in relation to an amount calculated by reference to a daily rate, state the daily rate,

(e) state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,

(f) specify a reasonable period within which the penalty must be paid,

(g) contain details of the rights of appeal under section 139, and

(h) contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take).

(4) A penalty notice under section 120(6) must also specify the amount of the fee that is (in OFCOM’s opinion) due to be paid to OFCOM.

(5) The period specified under subsection (3)(f) for the payment of a single amount must be at least 28 days beginning with the day on which the penalty notice is given.

(6) Subsection (7) applies in relation to a penalty notice under section 119(5) or 120(6) that includes a requirement to pay an amount calculated by reference to a daily rate.

(7) Such a notice must—

(a) state the date from which the amount begins to be payable, which must not be earlier than the day after the day on which the notice is given;

(b) provide for the amount to continue to be payable at the daily rate until—

(i) (in the case of a notice under section 119(5)) the date on which OFCOM are satisfied that the provider is complying with the notice under section 103(1), or (in the case of a notice under section 120(6)) the date on which the full amount of the fee (as specified in the penalty notice) has been paid to OFCOM, or

(ii) an earlier date specified in the penalty notice.

Amount of penalties etc¶

122 Amount of penalties etc¶

Schedule 12 contains provision about the amount of penalties that OFCOM may impose under this Chapter, and makes further provision about such penalties.

Business disruption measures¶

123 Service restriction orders¶

(1) OFCOM may apply to the court for an order under this section (a “service restriction order”) in relation to a regulated service where they consider that—

(a) the grounds in subsection (3) apply in relation to the service, or

(b) in the case of a Part 3 service, the grounds in subsection (4) apply in relation to the service.

(2) A service restriction order is an order imposing requirements on one or more persons who provide an ancillary service (whether from within or outside the United Kingdom) in relation to a regulated service (see subsection (11)).

(3) The grounds mentioned in subsection (1)(a) are that—

(a) the provider of the regulated service has failed to comply with an enforceable requirement that applies in relation to the regulated service,

(b) the failure is continuing, and

(i) the provider has failed to comply with a requirement imposed by a confirmation decision that is of a kind described in section 113(1) relating to the failure;

(ii) the provider has failed to pay a penalty imposed by a confirmation decision relating to the failure (and the confirmation decision did not impose any requirements of a kind described in section 113(1));

(iii) the provider would be likely to fail to comply with requirements imposed by a confirmation decision if given;

(iv) the circumstances of the failure or the risks of harm to individuals in the United Kingdom are such that it is appropriate to make the application without having given a provisional notice of contravention, without having given a confirmation decision, or (having given a confirmation decision imposing requirements) without waiting to ascertain compliance with those requirements.

(4) The grounds mentioned in subsection (1)(b) are that—

(a) the provider of the Part 3 service has failed to comply with a notice under section 103(1) that relates to the service (notices to deal with terrorism content and CSEA content), and

(b) the failure is continuing.

(5) An application by OFCOM for a service restriction order must—

(a) specify the regulated service in relation to which the application is made (“the relevant service”),

(b) specify the provider of that service (“the non-compliant provider”),

(d) specify the persons on whom (in OFCOM’s opinion) the requirements of the order should be imposed,

(e) contain evidence as to why OFCOM consider that the persons mentioned in paragraph (d) provide an ancillary service in relation to the relevant service, and specify any such ancillary service provided,

(f) specify the requirements which OFCOM consider that the order should impose on such persons, and

(g) in the case of an application made without notice having been given to the non-compliant provider, or to the persons mentioned in paragraph (d), state why no notice has been given.

(6) The court may make a service restriction order imposing requirements on a person in relation to the relevant service if the court is satisfied—

(a) as to the grounds in subsection (3) or the grounds in subsection (4) (as the case may be),

(b) that the person provides an ancillary service in relation to the relevant service,

(c) that it is appropriate to make the order for the purpose of preventing harm to individuals in the United Kingdom, and the order is proportionate to the risk of such harm,

(d) in the case of an application made on the ground in subsection (3)(c)(iii) or (iv), that it is appropriate to make the order before a provisional notice of contravention or confirmation decision has been given, or before compliance with requirements imposed by a confirmation decision has been ascertained (as the case may be), and

(e) if no notice of the application has been given to the non-compliant provider, or to the persons on whom requirements are being imposed, that it is appropriate to make the order without notice.

(7) When considering whether to make a service restriction order in relation to the relevant service, and when considering what provision it should contain, the court must take into account (among other things) the rights and obligations of all relevant parties, including those of—

(a) the non-compliant provider,

(b) the person or persons on whom the court is considering imposing the requirements, and

(8) A service restriction order made in relation to the relevant service must—

(a) identify the non-compliant provider,

(b) identify the persons on whom the requirements are imposed, and any ancillary service to which the requirements relate,

(c) require such persons to take the steps specified in the order, or to put in place arrangements, that have the effect of withdrawing the ancillary service to the extent that it relates to the relevant service (or part of it), or preventing the ancillary service from promoting or displaying content that relates to the relevant service (or part of it) in any way,

(d) specify the date by which the requirements in the order must be complied with, and

(e) specify the date on which the order expires, or the time period for which the order has effect.

(9) The steps that may be specified or arrangements that may be required to be put in place—

(a) include steps or arrangements that will or may require the termination of an agreement (whether or not made before the coming into force of this section), or the prohibition of the performance of such an agreement, and

(b) are limited, so far as that is possible, to steps or arrangements relating to the operation of the relevant service as it affects United Kingdom users.

(10) OFCOM must inform the Secretary of State as soon as reasonably practicable after a service restriction order has been made.

(11) For the purposes of this section, a service is an “ancillary service” in relation to a regulated service if the service facilitates the provision of the regulated service (or part of it), whether directly or indirectly, or displays or promotes content relating to the regulated service (or to part of it).

(12) Examples of ancillary services include—

(a) services, provided (directly or indirectly) in the course of a business, which enable funds to be transferred in relation to a regulated service,

(b) search engines which generate search results displaying or promoting content relating to a regulated service,

(d) services which use technology to facilitate the display of advertising on a regulated service (for example, an ad server or an ad network).

(13) In this section “the court” means—

(a) in England and Wales, the High Court or the county court,

(b) in Scotland, the Court of Session or a sheriff, and

124 Interim service restriction orders¶

(1) OFCOM may apply to the court for an interim order under this section (an “interim service restriction order”) in relation to a regulated service where they consider that—

(a) the grounds in subsection (3) apply in relation to the service, or

(b) in the case of a Part 3 service, the grounds in subsection (4) apply in relation to the service.

(2) An interim service restriction order is an interim order imposing requirements on one or more persons who provide an ancillary service (whether from within or outside the United Kingdom) in relation to a regulated service (see subsection (9)).

(3) The grounds mentioned in subsection (1)(a) are that—

(a) it is likely that the provider of the regulated service is failing to comply with an enforceable requirement that applies in relation to the regulated service, and

(b) the level of risk of harm to individuals in the United Kingdom relating to the likely failure, and the nature and severity of that harm, are such that it would not be appropriate to wait to establish the failure before applying for the order.

(4) The grounds mentioned in subsection (1)(b) are that—

(a) it is likely that the provider of the Part 3 service is failing to comply with a notice under section 103(1) that relates to the service (notices to deal with terrorism content and CSEA content), and

(5) An application by OFCOM for an interim service restriction order must—

(a) specify the regulated service in relation to which the application is made (“the relevant service”),

(b) specify the provider of that service (“the non-compliant provider”),

(d) specify the persons on whom (in OFCOM’s opinion) the requirements of the order should be imposed,

(f) specify the requirements which OFCOM consider that the order should impose on such persons, and

(g) in the case of an application made without notice having been given to the non-compliant provider, or to the persons mentioned in paragraph (d), state why no notice has been given.

(6) The court may make an interim service restriction order imposing requirements on a person in relation to the relevant service if the court is satisfied—

(a) as to the ground in subsection (3)(a) or the ground in subsection (4)(a) (as the case may be),

(b) that the person provides an ancillary service in relation to the relevant service,

(c) that there are prima facie grounds to suggest that an application for a service restriction order under section 123 would be successful,

(d) that the level of risk of harm to individuals in the United Kingdom relating to the likely failure mentioned in subsection (3)(a) or (4)(a) (whichever applies), and the nature and severity of that harm, are such that it is not appropriate to wait for the failure to be established before making the order, and

(e) if no notice of the application has been given to the non-compliant provider, or to the persons on whom requirements are being imposed, that it is appropriate to make the order without notice.

(7) An interim service restriction order ceases to have effect on the earlier of—

(a) the date specified in the order, or the date on which the time period specified in the order expires (as the case may be), and

(b) the date on which the court makes a service restriction order under section 123 in relation to the relevant service that imposes requirements on the same persons on whom requirements are imposed by the interim order, or dismisses the application for such an order.

(8) Subsections (7) to (10) of section 123⁴ apply in relation to an interim service restriction order under this section as they apply in relation to a service restriction order under that section.

(9) In this section, “ancillary service” and “the court” have the same meaning as in section 123 (see subsections (11), (12) and (13) of that section).

125 Access restriction orders¶

(1) OFCOM may apply to the court for an order under this section (an “access restriction order”) in relation to a regulated service where they consider that—

(a) the grounds in section 123(3) or (4) apply in relation to the service, and

(b) either—

(i) a service restriction order under section 123 or an interim service restriction order under section 124 has been made in relation to the failure, and it was not sufficient to prevent significant harm arising to individuals in the United Kingdom as a result of the failure, or

(ii) the likely consequences of the failure are such that if a service restriction order or an interim service restriction order were to be made, it would be unlikely to be sufficient to prevent significant harm arising to individuals in the United Kingdom as a result of the failure,

and in this paragraph, “the failure” means the failure mentioned in section 123(3)(a) or (4)(a) (as the case may be).

(2) An access restriction order is an order imposing requirements on one or more persons who provide an access facility (whether from within or outside the United Kingdom) in relation to a regulated service (see subsection (10)).

(3) An application by OFCOM for an access restriction order must—

(a) specify the regulated service in relation to which the application is made (“the relevant service”),

(b) specify the provider of that service (“the non-compliant provider”),

(d) specify the persons on whom (in OFCOM’s opinion) the requirements of the order should be imposed,

(e) contain evidence as to why OFCOM consider that the persons mentioned in paragraph (d) provide an access facility in relation to the relevant service, and specify any such access facility provided,

(f) specify the requirements which OFCOM consider that the order should impose on such persons, and

(g) in the case of an application made without notice having been given to the non-compliant provider, or to the persons mentioned in paragraph (d), state why no notice has been given.

(4) The court may make an access restriction order imposing requirements on a person in relation to the relevant service if the court is satisfied—

(a) as to the grounds in subsection (1),

(b) that the person provides an access facility in relation to the relevant service,

(c) that it is appropriate to make the order for the purpose of preventing significant harm to individuals in the United Kingdom, and the order is proportionate to the risk of such harm,

(d) in the case of an application made on the ground in subsection (3)(c)(iii) or (iv) of section 123 (by virtue of subsection (1)(a)), that it is appropriate to make the order before a provisional notice of contravention or confirmation decision has been given, or before compliance with requirements imposed by a confirmation decision has been ascertained (as the case may be), and

(e) if no notice of the application has been given to the non-compliant provider, or to the persons on whom requirements are being imposed, that it is appropriate to make the order without notice.

(5) When considering whether to make an access restriction order in relation to the relevant service, and when considering what provision it should contain, the court must take into account (among other things) the rights and obligations of all relevant parties, including those of—

(a) the non-compliant provider,

(b) the person or persons on whom the court is considering imposing the requirements, and

(6) An access restriction order made in relation to the relevant service must—

(a) identify the non-compliant provider,

(b) identify the persons on whom the requirements are imposed, and any access facility to which the requirements relate,

(c) require such persons to take the steps specified in the order, or to put in place arrangements, to withdraw, adapt or manipulate the access facility in order to impede users’ access (by means of that facility) to the relevant service (or to part of it),

(d) specify the date by which the requirements in the order must be complied with, and

(e) specify the date on which the order expires, or the time period for which the order has effect.

(7) The steps that may be specified or arrangements that may be required to be put in place—

(b) are limited, so far as that is possible, to steps or arrangements that impede the access of United Kingdom users, and

(c) are limited, so far as that is possible, to steps or arrangements that do not affect such users’ ability to access any other internet services.

(8) OFCOM must inform the Secretary of State as soon as reasonably practicable after an access restriction order has been made.

(9) Where a person who provides an access facility takes steps or puts in place arrangements required by an access restriction order, OFCOM may, by notice, require that person to (where possible) notify persons in the United Kingdom who attempt to access the relevant service via that facility of the access restriction order (and where a confirmation decision has been given to the non- compliant provider, the notification must refer to that decision).

(10) For the purposes of this section, a facility is an “access facility” in relation to a regulated service if the person who provides the facility is able to withdraw, adapt or manipulate it in such a way as to impede access (by means of that facility) to the regulated service (or to part of it) by United Kingdom users of that service.

(11) Examples of access facilities include—

(a) internet access services by means of which a regulated service is made available, and

(b) application stores through which a mobile application for a regulated service may be downloaded or otherwise accessed.

(12) In this section—

“the court” means—

(a) in England and Wales, the High Court or the county court,

(b) in Scotland, the Court of Session or a sheriff, and

“facility” means any kind of service, infrastructure or apparatus enabling users of a regulated service to access the regulated service;

“internet access service” means a service that provides access to virtually all (or just some) of the end points of the internet.

126 Interim access restriction orders¶

(1) OFCOM may apply to the court for an interim order under this section (an “interim access restriction order”) in relation to a regulated service where they consider that—

(a) the grounds in section 124(3) or (4) apply in relation to the service, and

(b) either—

(i) a service restriction order under section 123 or an interim service restriction order under section 124 has been made in relation to the likely failure, and it was not sufficient to prevent significant harm arising to individuals in the United Kingdom as a result of the failure, or

(ii) the likely consequences of such a failure would be such that if a service restriction order or an interim service restriction order were to be made, it would be unlikely to be sufficient to prevent significant harm arising to individuals in the United Kingdom as a result of the failure,

and in this section, “the likely failure” means the likely failure mentioned in section 124(3)(a) or (4)(a) (as the case may be).

(2) An interim access restriction order is an interim order imposing requirements on one or more persons who provide an access facility (whether from within or outside the United Kingdom) in relation to a regulated service (see subsection (8)).

(3) An application by OFCOM for an interim access restriction order must—

(a) specify the regulated service in relation to which the application is made (“the relevant service”),

(b) specify the provider of that service (“the non-compliant provider”),

(d) specify the persons on whom (in OFCOM’s opinion) the requirements of the order should be imposed,

(f) specify the requirements which OFCOM consider that the order should impose on such persons, and

(g) in the case of an application made without notice having been given to the non-compliant provider, or to the persons mentioned in paragraph (d), state why no notice has been given.

(4) The court may make an interim access restriction order imposing requirements on a person in relation to the relevant service if the court is satisfied—

(a) that the ground in section 124(3)(a) or (4)(a) (as the case may be) applies in relation to the service,

(b) as to the ground in subsection (1)(b)(i) or (ii),

(d) that there are prima facie grounds to suggest that an application for an access restriction order under section 125 would be successful,

(e) that the level of risk of harm to individuals in the United Kingdom relating to the likely failure, and the nature and severity of that harm, are such that it is not appropriate to wait for the failure to be established before making the order, and

(f) if no notice of the application has been given to the non-compliant provider, or to the persons on whom requirements are being imposed, that it is appropriate to make the order without notice.

(5) An interim access restriction order ceases to have effect on the earlier of—

(a) the date specified in the order, or the date on which the time period specified in the order expires (as the case may be), and

(b) the date on which the court makes an access restriction order under section 125 in relation to the relevant service that imposes requirements on the same persons on whom requirements are imposed by the interim order, or dismisses an application for such an order.

(6) Subsections (5) to (8) of section 125⁴ apply in relation to an interim access restriction order under this section as they apply in relation to an access restriction order under that section.

(7) Where a person who provides an access facility takes steps or puts in place arrangements required by an interim access restriction order, OFCOM may, by notice, require that person to (where possible) notify persons in the United Kingdom who attempt to access the relevant service via that facility of the interim access restriction order.

(8) In this section, “access facility” and “the court” have the same meaning as in section 125 (see subsections (10), (11) and (12) of that section).

127 Interaction with other action by OFCOM¶

(1) Where OFCOM apply for a business disruption order in respect of a failure by a provider of a regulated service to comply with an enforceable requirement, nothing in sections 123 to 126⁴ is to be taken to prevent OFCOM also giving the provider—

(a) a confirmation decision in respect of the failure, or

(b) a penalty notice under section 118 in relation to a confirmation decision in respect of the failure.

(2) Where OFCOM apply for a business disruption order in respect of a failure by a provider of a Part 3 service to comply with a notice under section 103(1) (notices to deal with terrorism content and CSEA content), nothing in sections 123 to 126⁴ is to be taken to prevent OFCOM also giving the provider either or both of the following—

(a) a further notice under section 103(1) (see section 106);

(b) a penalty notice under section 119(5).

(3) In this section, a “business disruption order” means—

(a) a service restriction order under section 123,

(b) an interim service restriction order under section 124,

(d) an interim access restriction order under section 126.

Publication of enforcement action¶

128 Publication of details of enforcement action¶

(1) Subsections (2) and (3) apply where OFCOM have given a person any of the following—

(a) a confirmation decision;

(b) a penalty notice under section 118;

(d) a penalty notice under section 120(6).

(2) OFCOM must publish details identifying the person and describing—

(a) the failure (or failures) to which the decision or notice relates, and

(b) OFCOM’s response.

(3) But OFCOM may not publish anything that, in OFCOM’s opinion—

(a) is confidential in accordance with subsections (4) and (5), or

(b) is otherwise not appropriate for publication.

(4) A matter is confidential under this subsection if—

(a) it relates specifically to the affairs of a particular body, and

(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(5) A matter is confidential under this subsection if—

(a) it relates to the private affairs of an individual, and

(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

(6) Where OFCOM have given a person a provisional notice of contravention but have not given the person a confirmation decision, OFCOM may publish details identifying the person and describing the reasons for the provisional notice.

(7) OFCOM must notify the person concerned that information has been published under this section.

Guidance¶

129 OFCOM’s guidance about enforcement action¶

(1) OFCOM must produce guidance for providers of regulated services about how OFCOM propose to exercise their functions under this Chapter.

(2) The guidance must, in particular, give information about the factors that OFCOM would consider it appropriate to take into account when taking, or considering taking, enforcement action relating to a person’s failure to comply with different kinds of enforceable requirements.

(3) In relation to any enforcement action by OFCOM which relates to a failure by a provider of a regulated service to comply with a relevant duty, the guidance must include provision explaining how OFCOM will take into account the impact (or possible impact) of such a failure on children.

(4) Before producing the guidance (including revised or replacement guidance), OFCOM must consult—

(a) the Secretary of State, and

(b) such other persons as OFCOM consider appropriate.

(5) OFCOM must publish the guidance (and any revised or replacement guidance).

(6) Guidelines prepared by OFCOM under section 392 of the Communications Act (amount of penalties) may, so far as relating to penalties imposed under this Chapter, be included in the same document as guidance under this section.

(7) In exercising their functions under this Chapter, or deciding whether to exercise them, OFCOM must have regard to the guidance for the time being published under this section.

(8) In this section, a “relevant duty” means—

(a) a duty set out in section 9 or 24 (illegal content),

(b) a duty set out in section 11 or 26 (children’s online safety), or

Chapter 7 Committees, research and reports¶

130 Advisory committee on disinformation and misinformation¶

(1) OFCOM must, in accordance with the following provisions of this section, exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (committees of OFCOM) to establish and maintain a committee to provide the advice specified in this section.

(2) The committee is to consist of—

(a) a chairman appointed by OFCOM, and

(b) such number of other members appointed by OFCOM as OFCOM consider appropriate.

(3) In appointing persons to be members of the committee, OFCOM must have regard to the desirability of ensuring that the members of the committee include—

(a) persons representing the interests of United Kingdom users of regulated services,

(b) persons representing providers of regulated services, and

(4) The function of the committee is to provide advice to OFCOM (including other committees established by OFCOM) about—

(a) how providers of regulated services should deal with disinformation and misinformation on such services,

(b) OFCOM’s exercise of the power conferred by section 64 to require information about a matter listed in Part 1 or 2 of Schedule 8, so far as relating to disinformation and misinformation, and

(c) OFCOM’s exercise of their functions under section 11 of the Communications Act (duty to promote media literacy) in relation to countering disinformation and misinformation on regulated services.

(5) The committee must publish a report within the period of 18 months after being established, and after that must publish periodic reports.

131 Functions of the Content Board¶

(1) Section 13 of the Communications Act (functions of the Content Board) is amended as follows.

(2) At the beginning of subsection (2), insert “Subject to subsection (3A),”.

(3) After subsection (3) insert—

(3A) OFCOM may, but need not, confer on the Content Board functions in relation to matters that concern the nature or kind of online content in relation to which OFCOM have functions under the Online Safety Act 2022 (see Parts 3 and 5 of that Act).

(4) After subsection (7) insert—

(8) In this section references to “matters mentioned in subsection (2)” do not include references to the matters mentioned in subsection (3A).

132 Research about users’ experiences of regulated services¶

(1) Section 14 of the Communications Act (consumer research) is amended as follows.

(2) After subsection (6A) insert—

(6B) OFCOM must make arrangements for ascertaining—
(a) the state of public opinion from time to time concerning providers of regulated services and their manner of operating their services;
(b) the experiences of United Kingdom users of regulated services in relation to their use of such services;
(c) the experiences of United Kingdom users of regulated user-to- user services and regulated search services in relation to the handling of complaints made by them to providers of such services; and
(d) the interests and experiences of United Kingdom users of regulated services in relation to matters that are incidental to or otherwise connected with their experiences of using such services.
(6C) OFCOM’s report under paragraph 12 of the Schedule to the Office of Communications Act 2002 for each financial year must contain a statement by OFCOM about the research that has been carried out in that year under subsection (6B).”

(3) After subsection (8) insert—

(8A) In subsection (6B) the following terms have the same meaning as in the Online Safety Act 2022—
“provider” (see section 180 of that Act);
“regulated service”, “regulated user-to-user service” and
“regulated search service” (see section 3 of that Act);
“United Kingdom user” (see section 181 of that Act).”

133 Consumer consultation¶

(1) Section 16 of the Communications Act (consumer consultation) is amended as follows.

(2) In subsection (4), after paragraph (d) insert—

(da) regulated services;

(3) After subsection (5) insert—

(5A) As regards OFCOM’s functions under the Online Safety Act 2022 in relation to regulated services—
(a) the reference in subsection (5) to “the contents” of a thing includes a reference to specific pieces of online content, but
(b) subsection (5) is not to be read as preventing the Consumer Panel from being able to give advice about any matter that more generally concerns—
(i) different kinds of online content in relation to which OFCOM have functions under that Act (see Parts 3 and 5 of that Act), and
(ii) the impact that different kinds of such content may have on United Kingdom users of regulated services.”

(4) After subsection (12) insert—

(12A) OFCOM’s report under paragraph 12 of the Schedule to the Office of Communications Act 2002 for each financial year must contain a statement by OFCOM about the arrangements for consultation that have been made in that year under this section, so far as the arrangements relate to regulated services.

(5) In subsection (13), in the definition of “domestic and small business consumer”, in paragraph (b)(i), after “available” insert “or a provider of a regulated service”.

(6) After subsection (13) insert—

(14) In this section the following terms have the same meaning as in the Online Safety Act 2022—
“provider”, in relation to a regulated service (see section 180 of that Act);
“regulated service” (see section 3 of that Act);
“United Kingdom user” (see section 181 of that Act).”

134 OFCOM’s statement about freedom of expression and privacy¶

OFCOM’s report under paragraph 12 of the Schedule to the Office of Communications Act 2002 for each financial year must contain a statement by OFCOM about the steps they have taken, and the processes they operate, to ensure that their online safety functions have been exercised in that year compatibly with Articles 8 and 10 of the Convention (so far as relevant).

135 OFCOM’s transparency reports¶

(1) OFCOM must produce transparency reports based on information contained in the transparency reports produced by providers of Part 3 services under section 64.

(2) OFCOM’s transparency reports must contain—

(a) a summary of conclusions drawn from the transparency reports produced under section 64 regarding patterns or trends which OFCOM have identified in such reports,

(b) a summary of measures mentioned in such transparency reports which OFCOM consider to be good industry practice, and

(3) OFCOM’s first transparency report must be published by the end of the period of one year beginning with—

(a) the day on which the first report under section 64 is published by a provider of a Part 3 service (see subsection (3)(d) of that section), or

(b) if later, the earliest date specified by OFCOM for submission of a report under section 64 in a notice given to a provider (see subsection (3)(c) of that section).

(4) OFCOM must publish a transparency report at least once a year after the publication of their first transparency report.

(5) For further provision about reports under this section, see section 137.

136 OFCOM’s report about researchers’ access to information¶

(1) OFCOM must produce a report—

(a) describing how, and to what extent, persons carrying out independent research into online safety matters are currently able to obtain information from providers of regulated services to inform their research,

(b) exploring the legal and other issues which currently constrain the sharing of information for such purposes, and

(2) For the purposes of this section a person carries out “independent research” if the person carries out research on behalf of a person other than a provider of a regulated service.

(3) In preparing the report, OFCOM must consult—

(a) the Information Commissioner,

(b) the Centre for Data Ethics and Innovation,

(d) persons who appear to OFCOM to represent providers of regulated services, and

(e) such other persons as OFCOM consider appropriate.

(4) OFCOM must publish the report within the period of two years beginning with the day on which this section comes into force.

(5) OFCOM must send a copy of the report to the Secretary of State, and the Secretary of State must lay it before Parliament.

(6) For further provision about the report under this section, see section 137.

(7) Following the publication of the report, OFCOM may produce guidance about the matters dealt with by the report for providers of regulated services and persons carrying out independent research into online safety matters.

(8) If OFCOM decide to produce such guidance, they must—

(a) consult persons as mentioned in subsection (3),

(b) publish the guidance (and any revised guidance), and

(9) Subsection (8)(a) also applies if OFCOM decide to revise the guidance.

137 OFCOM’s reports¶

(1) OFCOM may from time to time produce and publish reports about online safety matters.

(2) In publishing a report mentioned in subsection (5), OFCOM must have regard to the need to exclude from publication, so far as that is practicable, the matters which are confidential in accordance with subsections (3) and (4).

(3) A matter is confidential under this subsection if—

(a) it relates specifically to the affairs of a particular body, and

(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(4) A matter is confidential under this subsection if—

(a) it relates to the private affairs of an individual, and

(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

(5) The reports referred to in subsection (2) are—

(a) a report under section 108 (report in connection with notices to deal with terrorism content and CSEA content),

(b) a report under section 135 (transparency report),

(d) a report produced under this section.

(6) See also section 99(3) (restriction on publishing intelligence service information).

Part 8 Appeals and super-complaints¶

Chapter 1 Appeals¶

138 Appeals against OFCOM decisions relating to the register under section 81¶

(1) This section applies to the following decisions of OFCOM—

(a) a decision to include a regulated user-to-user service in the part of the register referred to in section 81(2)(a) (Category 1 services);

(b) a decision not to remove a regulated user-to-user service from that part of the register;

(c) a decision to include a regulated search service or a combined service in the part of the register referred to in section 81(2)(b) (Category 2A services);

(d) a decision not to remove a regulated search service or a combined service from that part of the register;

(e) a decision to include a regulated user-to-user service in the part of the register referred to in section 81(2)(c) (Category 2B services);

(f) a decision not to remove a regulated user-to-user service from that part of the register.

(2) The provider of the service to which the decision relates may appeal to the Upper Tribunal against the decision.

(3) Where an appeal is made under subsection (1)(a), (c) or (e), any special requirements need not be complied with until the determination or withdrawal of the appeal.

(4) “Special requirement” means—

(a) in the case of an appeal against a decision mentioned in subsection (1)(a)—

(i) any duty or requirement of this Act that applies in relation to Category 1 services but not in relation to any other regulated services, or

(ii) any duty or requirement of this Act that applies in relation to Category 1 services, Category 2A services and Category 2B services but not in relation to any other regulated services;

(b) in the case of an appeal against a decision mentioned in subsection (1)(c)—

(i) any duty or requirement of this Act that applies in relation to Category 2A services but not in relation to any other regulated services, or

(ii) any duty or requirement of this Act that applies in relation to Category 1 services, Category 2A services and Category 2B services but not in relation to any other regulated services;

(c) in the case of an appeal against a decision mentioned in subsection (1)(e), any duty or requirement of this Act that applies in relation to Category 1 services, Category 2A services and Category 2B services but not in relation to any other regulated services.

(5) The Upper Tribunal must decide the appeal by applying the same principles as would be applied—

(a) by the High Court on an application for judicial review, or

(b) in Scotland, on an application to the supervisory jurisdiction of the Court of Session.

(6) On an appeal under this section, the Upper Tribunal may—

(a) dismiss the appeal, or

(b) quash the decision being challenged.

(7) Where a decision is quashed, the Upper Tribunal must remit the decision to OFCOM for reconsideration with such directions (if any) as the Tribunal considers appropriate.

139 Appeals against OFCOM notices¶

(1) An appeal to the Upper Tribunal against OFCOM’s decision to give to a person—

(a) a notice under section 103(1) (notices to deal with terrorism content and CSEA content),

(b) a confirmation decision, or

may be brought by any person with a sufficient interest in the decision.

(2) An appeal under subsection (1) by a person other than the person given the notice or decision in question may be brought only with the permission (or leave) of the Upper Tribunal.

(3) The Upper Tribunal must decide the appeal by applying the same principles as would be applied—

(a) by the High Court on an application for judicial review, or

(b) in Scotland, on an application to the supervisory jurisdiction of the Court of Session.

(4) On an appeal under this section, the Upper Tribunal may—

(a) dismiss the appeal, or

(b) quash the decision being challenged.

(5) Where a decision is quashed, the Upper Tribunal must remit the decision to OFCOM for reconsideration with such directions (if any) as the Tribunal considers appropriate.

(6) In this section “penalty notice” means a penalty notice under section 118, 119(5) or 120(6).

Chapter 2 Super-complaints¶

140 Power to make super-complaints¶

(1) An eligible entity may make a complaint to OFCOM that any feature of one or more regulated services, or any conduct of one or more providers of such services, or any combination of such features and such conduct is, appears to be, or presents a material risk of—

(a) causing significant harm to users of the services or members of the public, or a particular group of such users or members of the public;

(b) significantly adversely affecting the right to freedom of expression within the law of users of the services or members of the public, or of a particular group of such users or members of the public; or

(c) otherwise having a significant adverse impact on users of the services or members of the public, or on a particular group of such users or members of the public.

(2) But a complaint under subsection (1) that relates to a single regulated service or that relates to a single provider of one or more regulated services is only admissible if OFCOM consider that—

(a) the complaint is of particular importance, or

(b) the complaint relates to the impacts on a particularly large number of users of the service or members of the public.

(3) An entity is an “eligible entity” if the entity meets criteria specified in regulations made by the Secretary of State.

(4) Regulations under subsection (3) must specify as one of the criteria that the entity must be a body representing the interests of users of regulated services, or members of the public, or a particular group of such users or members of the public.

(5) Before making regulations under subsection (3), the Secretary of State must consult—

(a) OFCOM, and

(b) such other persons as the Secretary of State considers appropriate.

(6) In this section—

“conduct” includes acts and omissions;

“users” means United Kingdom users (see section 181), except in subsection (1)(a) where “users” means individuals in the United Kingdom who are users of a service.

141 Procedure for super-complaints¶

(1) The Secretary of State must make regulations containing provision about procedural matters relating to complaints under section 140.

(2) Such regulations may, in particular, include provision about the following matters—

(a) notification to OFCOM of an intention to make a complaint under section 140;

(b) the form and manner of such a complaint, including requirements for supporting evidence in relation to—

(i) matters mentioned in subsections (1) and (2) of section 140, and

(ii) criteria specified in regulations under subsection (3) of that section;

(d) time limits for taking steps in relation to such a complaint (or provision about how such time limits are to be determined) including time limits in relation to the determination of—

(i) whether a complaint is a complaint that is within section 140(1),

(ii) where applicable, whether a complaint is admissible under section 140(2), and

(iii) whether an entity is an eligible entity (see section 140(3)).

(3) Before making regulations under subsection (1), the Secretary of State must consult—

(a) OFCOM, and

(b) such other persons as the Secretary of State considers appropriate.

142 OFCOM’s guidance about super-complaints¶

(1) OFCOM must produce guidance about complaints under section 140, which must include guidance about—

(a) the criteria specified in regulations under section 140(3),

(b) procedural matters relating to such complaints, and

(2) OFCOM must publish the guidance (and any revised or replacement guidance).

Part 9 Secretary of State's functions in relation to regulated services¶

Strategic priorities¶

143 Statement of strategic priorities¶

(1) The Secretary of State may designate a statement for the purposes of this section if the requirements set out in section 144 (consultation and parliamentary procedure) are satisfied.

(2) The statement is a statement prepared by the Secretary of State that sets out strategic priorities of Her Majesty’s Government in the United Kingdom relating to online safety matters.

(3) The statement may, among other things, set out particular outcomes identified with a view to achieving the strategic priorities.

(4) This section does not restrict the Secretary of State’s powers under any other provision of this Act or any other enactment.

(5) A statement designated under subsection (1) must be published in such manner as the Secretary of State considers appropriate.

(6) A statement designated under subsection (1) may be amended (including by replacing the whole or a part of the statement with new material) by a subsequent statement designated under that subsection, and this section and sections 78 and 144 apply in relation to any such subsequent statement as they apply in relation to the original statement.

(7) Except as provided by subsection (8), no amendment may be made under subsection (6) within the period of five years beginning with the day on which a statement was most recently designated under subsection (1).

(8) An earlier amendment may be made under subsection (6) if—

(a) since that day—

(i) a Parliamentary general election has taken place, or

(ii) there has been a significant change in the policy of Her Majesty’s government affecting online safety matters, or

(b) the Secretary of State considers that the statement, or any part of it, conflicts with any of OFCOM’s general duties (within the meaning of section 3 of the Communications Act).

144 Consultation and parliamentary procedure¶

(1) This section sets out the requirements that must be satisfied in relation to a statement before the Secretary of State may designate it under section 143.

(2) The Secretary of State must consult—

(a) OFCOM, and

(b) such other persons as the Secretary of State considers appropriate,

on a draft of the statement.

(3) The Secretary of State must allow OFCOM a period of at least 40 days to respond to any consultation under subsection (2)(a).

(4) After that period has ended the Secretary of State—

(a) must make any changes to the draft that appear to the Secretary of State to be necessary in view of responses to the consultation, and

(b) must then lay the draft before Parliament.

(5) The Secretary of State must then wait until the end of the 40-day period and may not designate the statement if, within that period, either House of Parliament resolves not to approve it.

(6) “The 40-day period” is the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House on the same day, the later of the days on which it is laid).

(7) When calculating the 40-day period, any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days is to be ignored.

Directions to OFCOM¶

145 Directions about advisory committees¶

(1) The Secretary of State may give OFCOM a direction requiring OFCOM to establish a committee to provide them with advice about online safety matters of a kind specified in the direction.

(2) The Secretary of State must consult OFCOM before giving or varying such a direction.

(3) A committee required to be established by a direction is to consist of the following members, unless the direction specifies otherwise—

(a) a chairman appointed by OFCOM, and

(b) such number of other members appointed by OFCOM as OFCOM consider appropriate.

(4) A committee required to be established by a direction must, unless the direction specifies otherwise, publish a report within the period of 18 months after being established, and after that must publish periodic reports.

(5) The Secretary of State may vary or revoke a direction given under this section.

146 Directions in special circumstances¶

(1) The Secretary of State may give a direction to OFCOM under subsection (2) or (3) if the Secretary of State has reasonable grounds for believing that circumstances exist that present a threat—

(a) to the health or safety of the public, or

(b) to national security.

(2) A direction under this subsection is a direction requiring OFCOM, in exercising their media literacy functions, to give priority for a specified period to specified objectives designed to address the threat presented by the circumstances mentioned in subsection (1).

(3) A direction under this subsection is a direction requiring OFCOM to give a public statement notice to—

(a) a specified provider of a regulated service, or

(b) providers of regulated services generally.

(4) A “public statement notice” is a notice requiring a provider of a regulated service to make a publicly available statement, by a date specified in the notice, about steps the provider is taking in response to the threat presented by the circumstances mentioned in subsection (1).

(5) OFCOM may, by a public statement notice or a subsequent notice, require a provider of a regulated service to provide OFCOM with such information as they may require for the purpose of responding to that threat.

(6) If a direction under subsection (2) or (3) is given on the ground mentioned in subsection (1)(a), the Secretary of State must publish the reasons for giving the direction.

(7) The Secretary of State may vary or revoke a direction given under subsection (2) or (3).

(8) If the Secretary of State varies or revokes a direction given under subsection (3), OFCOM may, in consequence, vary or revoke a public statement notice that they have given by virtue of the direction.

(9) In subsection (2) “media literacy functions” means OFCOM’s functions under section 11 of the Communications Act (duty to promote media literacy), so far as functions under that section relate to regulated services.

(10) In subsections (2) and (3) “specified” means specified in a direction under this section.

Guidance¶

147 Secretary of State’s guidance¶

(1) The Secretary of State may issue guidance to OFCOM about—

(a) OFCOM’s exercise of their functions under this Act,

(b) OFCOM’s exercise of their powers under section 1(3) of the Communications Act (functions and general powers of OFCOM) to carry out research in connection with online safety matters or to arrange for others to carry out research in connection with such matters, and

(c) OFCOM’s exercise of their functions under section 11 of the Communications Act (media literacy) in relation to regulated services.

(2) In the rest of this section, “the guidance” means any such guidance as is mentioned in subsection (1), except that it does not include guidance under section 74 (guidance to OFCOM about fees).

(3) The Secretary of State must consult OFCOM before issuing, revising or replacing the guidance.

(4) The guidance may not be revised or replaced more frequently than once every three years unless—

(a) the guidance needs to be corrected because of an amendment, repeal or modification of any provision of this Act or of section 11 of the Communications Act, or

(b) the revision or replacement is by agreement between the Secretary of State and OFCOM.

(5) The guidance must be issued as one document.

(6) The Secretary of State must lay the guidance (including revised or replacement guidance) before Parliament.

(7) The Secretary of State must publish the guidance (and any revised or replacement guidance).

(8) In exercising any functions to which the guidance relates, or deciding whether to exercise them, OFCOM must have regard to the guidance for the time being published under this section.

Annual report¶

148 Annual report on the Secretary of State’s functions¶

In section 390 of the Communications Act (annual report on the Secretary of State’s functions), in subsection (2), after paragraph (e) insert—

(f) the Online Safety Act 2022.

Review¶

149 Review¶

(1) The Secretary of State must review the operation of—

(a) the regulatory framework provided for in this Act, and

(b) section 11 of the Communications Act, to the extent that that section relates to regulated services.

(2) The review—

(a) must not be carried out before the end of the period of two years beginning with the day on which the last of the provisions of Part 3 comes into force, but

(b) must be carried out before the end of the period of five years beginning with that day.

(3) The review must, in particular, consider how effective the regulatory framework provided for in this Act is at—

(a) securing that regulated services are operated using systems and processes that, so far as relevant—

(i) minimise the risk of harm to individuals in the United Kingdom presented by content on regulated services,

(ii) provide higher levels of protection for children than for adults,

(iii) provide transparency and accountability to users in relation to actions taken to comply with duties set out in Chapter 2, 3, 4 or 5 of Part 3, Chapter 1 of Part 4, or Part 5,

(iv) protect the right of users and (in the case of search services or combined services) interested persons to freedom of expression within the law, and

(v) protect users from a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of a regulated service (including, but not limited to, any such provision or rule concerning the processing of personal data); and

(b) ensuring that regulation of services is proportionate, having regard to the level of risk of harm presented by regulated services of different kinds and to the size and capacity of providers.

(4) The review must also, in particular, consider—

(a) the effectiveness of—

(i) the information gathering and information sharing powers available to OFCOM, and

(ii) the enforcement powers available to OFCOM; and

(b) the extent to which OFCOM have had regard to the desirability of encouraging innovation by providers of regulated services.

(5) In carrying out the review, the Secretary of State must consult—

(a) OFCOM, and

(b) such other persons as the Secretary of State considers appropriate.

(6) The Secretary of State must produce and publish a report on the outcome of the review.

(7) The report must be laid before Parliament.

(8) In subsection (3) “content on regulated services” means—

(a) regulated user-generated content present on regulated services,

(b) search content of regulated services,

(d) regulated provider pornographic content published or displayed on regulated services.

(9) In subsection (8)—

“fraudulent advertisement” has the meaning given by section 34 or 35 (depending on the kind of service in question);

“regulated user-generated content” has the same meaning as in Part 3 (see section 49);

“regulated provider pornographic content” and “published or displayed” have the same meaning as in Part 5 (see section 66);

“search content” has the same meaning as in Part 3 (see section 51).

Part 10 Communications offences¶

Harmful, false and threatening communications offences¶

150 Harmful communications offence¶

(1) A person commits an offence if—

(a) the person sends a message (see section 153),

(b) at the time of sending the message—

(i) there was a real and substantial risk that it would cause harm to a likely audience, and

(ii) the person intended to cause harm to a likely audience, and

(2) For the purposes of this offence an individual is a “likely audience” of a message if, at the time the message is sent, it is reasonably foreseeable that the individual—

(a) would encounter the message, or

(b) in the online context, would encounter a subsequent message forwarding or sharing the content of the message.

(3) In a case where several or many individuals are a likely audience, it is not necessary for the purposes of subsection (1)(b)(ii) that the person intended to cause harm to any one of them in particular (or to all of them).

(4) “Harm” means psychological harm amounting to at least serious distress.

(5) In deciding whether a person has a reasonable excuse for sending a message, one of the factors that the court must consider (if it is relevant in a particular case) is whether the message is, or is intended to be, a contribution to a matter of public interest (but that does not determine the point).

(6) The following cannot commit an offence under this section—

(a) a recognised news publisher as defined by section 50;

(b) the holder of a licence under the Broadcasting Act 1990 or 1996;

(d) the provider of an on-demand programme service.

(7) An offence under this section cannot be committed in connection with the showing of a film made for cinema to members of the public.

(8) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the maximum summary term for either-way offences or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).

151 False communications offence¶

(1) A person commits an offence if—

(a) the person sends a message (see section 153),

(b) the message conveys information that the person knows to be false,

(c) at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience, and

(d) the person has no reasonable excuse for sending the message.

(2) For the purposes of this offence an individual is a “likely audience” of a message if, at the time the message is sent, it is reasonably foreseeable that the individual—

(a) would encounter the message, or

(b) in the online context, would encounter a subsequent message forwarding or sharing the content of the message.

(3) In a case where several or many individuals are a likely audience, it is not necessary for the purposes of subsection (1)(c) that the person intended to cause harm to any one of them in particular (or to all of them).

(4) The following cannot commit an offence under this section—

(a) a recognised news publisher as defined by section 50;

(b) the holder of a licence under the Broadcasting Act 1990 or 1996;

(d) the provider of an on-demand programme service.

(5) An offence under this section cannot be committed in connection with the showing of a film made for cinema to members of the public.

(6) A person who commits an offence under this section is liable on summary conviction to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both).

(7) In subsection (6) “the maximum term for summary offences” means—

(a) if the offence is committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, 6 months;

(b) if the offence is committed after that time, 51 weeks.

(8) Proceedings for an offence under this section may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings comes to the prosecutor’s knowledge.

(9) But such proceedings may not be brought by virtue of subsection (8) more than 3 years after the commission of the offence.

(10) A certificate signed by the prosecutor as to the date on which the evidence in question came to the prosecutor’s knowledge is conclusive evidence of the date on which it did so; and a certificate to that effect and purporting to be so signed is to be treated as being so signed unless the contrary is proved.

152 Threatening communications offence¶

(1) A person commits an offence if—

(a) the person sends a message (see section 153),

(b) the message conveys a threat of death or serious harm, and

(i) intended an individual encountering the message to fear that the threat would be carried out, or

(ii) was reckless as to whether an individual encountering the message would fear that the threat would be carried out.

(2) “Serious harm” means—

(a) serious injury amounting to grievous bodily harm within the meaning of the Offences against the Person Act 1861,

(b) rape,

(d) serious financial loss.

(3) In proceedings for an offence under this section relating to a threat of serious financial loss, it is a defence for the person to show that—

(a) the threat was used to reinforce a reasonable demand, and

(b) the person reasonably believed that the use of the threat was a proper means of reinforcing the demand.

(4) If evidence is adduced which is sufficient to raise an issue with respect to the defence under subsection (3), the court must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

(5) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the maximum summary term for either-way offences or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine (or both).

153 Interpretation of sections 150 to 152¶

(1) This section applies for the purposes of sections 150 to 152³, and references in this section to an offence are to an offence under any of those sections.

(2) A person “sends a message” if the person—

(a) sends, transmits or publishes a communication (including an oral communication) by electronic means, or

(b) sends a letter or a thing of any other description,

and references to a message are to be read accordingly.

(3) A person also “sends a message” if the person—

(a) causes a communication (including an oral communication) to be sent, transmitted or published by electronic means, or

(b) causes a letter or a thing of any other description to be sent.

(4) But a provider of an internet service by means of which a communication is sent, transmitted or published is not to be regarded as a person who sends a message.

(5) “Encounter”, in relation to a message, means read, view, hear or otherwise experience the message.

(6) It does not matter whether the content of a message is created by the person who sends it (so for example, in the online context, an offence may be committed by a person who forwards another person’s direct message or shares another person’s post).

(7) In the application of sections 150 to 152³ to the sending, transmission or publication by electronic means of a message consisting of or including a hyperlink to other content—

(a) references to the message are to be read as including references to content accessed directly via the hyperlink, and

(b) an individual who is a likely audience in relation to the hyperlink for the purposes of section 150 or 151 is to be assumed to be a likely audience in relation to the linked content.

(8) In the application of sections 150 to 152³ to the sending of an item on which data is stored electronically, references to the message are to be read as including content accessed by means of the item to which the recipient is specifically directed by the sender.

(9) In the online context, the date on which a person commits an offence in relation to a message is the date on which the message is first sent, transmitted or published by the person.

(10) “On-demand programme service” has the same meaning as in the Communications Act (see section 368A of that Act), and a person is the “provider” of an on-demand programme service if the person has given notification of the person’s intention to provide that service in accordance with section 368BA of that Act.

154 Extra-territorial application and jurisdiction¶

(1) Sections 150(1), 151(1) and 152(1) apply to an act done outside the United Kingdom, but only if the act is done by a United Kingdom person.

(2) In subsection (1) “United Kingdom person” means—

(a) an individual who is habitually resident in England and Wales, or

(b) a body incorporated or constituted under the law of England and Wales.

(3) Proceedings for an offence committed under section 150, 151 or 152 outside the United Kingdom may be taken, and the offence may for incidental purposes be treated as having been committed, at any place in England and Wales.

155 Liability of corporate officers¶

(1) If an offence under section 150, 151 or 152 is committed by a body corporate and it is proved that the offence—

(a) has been committed with the consent or connivance of an officer of the body corporate, or

(b) is attributable to any neglect on the part of an officer of the body corporate,

the officer (as well as the body corporate) commits the offence and is liable to be proceeded against and punished accordingly.

(2) “Officer”, in relation to a body corporate, means—

(a) a director, manager, associate, secretary or other similar officer, or

(b) a person purporting to act in any such capacity.

In paragraph (a) “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

Offence of sending etc photograph or film of genitals¶

156 Sending etc photograph or film of genitals¶

In the Sexual Offences Act 2003, after section 66 insert—

66A Sending etc photograph or film of genitals
(1) A person (A) who intentionally sends or gives a photograph or film of any person’s genitals to another person (B) commits an offence if—
(a) A intends that B will see the genitals and be caused alarm, distress or humiliation, or
(b) A sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether B will be caused alarm, distress or humiliation.
(2) References to sending or giving such a photograph or film to another person include, in particular—
(a) sending it to another person by any means, electronically or otherwise,
(b) showing it to another person, and
(c) placing it for a particular person to find.
(3) “Photograph” includes the negative as well as the positive version.
(4) “Film” means a moving image.
(5) References to a photograph or film also include—
(a) an image, whether made by computer graphics or in any other way, which appears to be a photograph or film,
(b) a copy of a photograph, film or image within paragraph (a), and
(c) data stored by any means which is capable of conversion into a photograph, film or image within paragraph (a).
(6) A person who commits an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both);
(b) on conviction on indictment, to imprisonment for a term not exceeding two years.
(7) In relation to an offence committed before paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 comes into force, the reference in subsection (6)(a) to 12 months is to be read as a reference to six months.”

Repeals and amendments in connection with offences

157 Repeals in connection with offences under sections 150, 151 and 152¶

(1) The following provisions of section 127 of the Communications Act (improper use of electronic communications network) are repealed so far as they extend to England and Wales—

(a) subsection (1), and

(b) subsection (2)(a) and (b).

(2) The Malicious Communications Act 1988 is repealed.

158 Consequential amendments¶

(1) Part 1 of Schedule 13 contains amendments consequential on sections 150, 151 and 152.

(2) Part 2 of Schedule 13 contains amendments consequential on section 156.

Part 11 Supplementary and general¶

Liability of providers etc¶

159 Providers that are not legal persons¶

(1) In this section a “relevant entity” means an entity that—

(a) is the provider of a regulated service, and

(b) is not a legal person under the law under which it is formed.

(2) If a penalty notice is given to a relevant entity (in the name of the entity), the penalty must be paid out of the entity’s funds.

(3) If a notice is given by OFCOM to a relevant entity (in the name of the entity) under any provision of this Act, the notice continues to have effect despite a change in the membership of the entity.

(4) If a penalty notice is given jointly to two or more officers or members of a relevant entity, those individuals are jointly and severally liable to pay the penalty under it.

(5) In subsection (4) the reference to officers or members of a relevant entity includes a reference to employees of such an entity or any other individuals associated with such an entity.

(6) In this section a “penalty notice” means—

(a) a confirmation decision that imposes a penalty (see sections 112(5)(b) and 117),

(b) a penalty notice under section 118,

(d) a penalty notice under section 120(6).

160 Individuals providing regulated services: liability¶

(1) This section applies in relation to two or more individuals who together are the provider of a regulated service (see section 180(3), (5), (7), (9) and (11)).

(2) Any duty or requirement imposed on such a provider under any of the provisions specified in subsection (3), or any liability of such a provider to pay a fee under section 71, is to be taken to be imposed on, or to be a liability of, all the individuals jointly and severally.

(3) The provisions are—

(a) Chapter 2 of Part 3 (providers of user-to-user services: duties of care);

(b) Chapter 3 of Part 3 (providers of search services: duties of care);

(d) Chapter 5 of Part 3 (duties about fraudulent advertising);

(e) Chapter 1 of Part 4 (user identity verification);

(f) Chapter 2 of Part 4 (reporting CSEA content);

(g) Chapter 3 of Part 4 (transparency reporting);

(h) section 68 (provider pornographic content);

(i) section 70 (duty to notify OFCOM).

(4) A notice in respect of a matter that may or must be given by OFCOM under any provision of this Act may be given—

(a) to only one of the individuals,

(b) jointly to two or more of them, or

but a separate notice may not be given to each of the individuals in respect of the matter.

(5) If a penalty notice is given jointly to two or more individuals, those individuals are jointly and severally liable to pay the penalty under it.

(6) In subsection (5) a “penalty notice” means—

(a) a confirmation decision that imposes a penalty (see sections 112(5)(b) and 117),

(b) a penalty notice under section 118,

(d) a penalty notice under section 120(6).

161 Liability of parent entities etc¶

Schedule 14 contains provision about—

(a) the giving of joint provisional notices of contravention to parent entities etc,

(b) the liability of parent entities for failures by subsidiary entities,

(d) the liability of fellow subsidiary entities for failures by subsidiary entities, and

(e) the liability of controlling individuals for failures by entities.

Offences¶

162 Information offences: supplementary¶

(1) Proceedings against a person for an offence under section 92(1) or paragraph 18(1)(b) of Schedule 11 may be brought only if—

(a) OFCOM have given the person a provisional notice of contravention in respect of the failure to comply with the requirements of an information notice or the requirements imposed by a person acting under Schedule 11 (as the case may be),

(b) OFCOM have given the person a confirmation decision in respect of that failure imposing requirements of a kind described in section 113(1) and the time allowed for compliance with the decision has expired without those requirements having been complied with,

(d) a service restriction order under section 123 has not been made in relation to a regulated service provided by the person in respect of that failure, and

(e) an access restriction order under section 125 has not been made in relation to a regulated service provided by the person in respect of that failure.

(2) Proceedings for an offence under section 93(2) (failure by named senior manager to prevent offence under section 92(1)) may be brought only if the conditions in subsection (1) are met in respect of the offence under section 92(1).

(3) Where a penalty is imposed on a person in respect of an act or omission constituting an offence under section 62 or 92 or paragraph 18 of Schedule 11, no proceedings may be brought against the person for that offence.

(4) Where a penalty is imposed on an entity in respect of an act or omission constituting an offence under section 92, no proceedings for an offence under section 93 may be brought against an individual in respect of a failure to prevent that offence.

(5) A penalty may not be imposed on a person in respect of an act or omission constituting an offence under section 62 or 92 or paragraph 18 of Schedule 11 if—

(a) proceedings for the offence have been brought against the person but have not been concluded, or

(b) the person has been convicted of the offence.

(6) In this section “penalty” means a penalty imposed by—

(a) a confirmation decision (see sections 112(5)(b) and 117), or

(b) a penalty notice under section 118.

163 Defences¶

(1) Subsection (2) applies where a person relies on a defence under section 92 or 93.

(2) If evidence is adduced which is sufficient to raise an issue with respect to the defence, the court must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

164 Liability of corporate officers for offences¶

(1) In this section a “relevant entity” means an entity that is—

(a) the provider of a regulated service, and

(b) a legal person under the law under which it is formed.

(2) If an offence is committed by a relevant entity and it is proved that the offence—

(a) has been committed with the consent or connivance of an officer of the entity, or

(b) is attributable to any neglect on the part of an officer of the entity,

the officer (as well as the entity) commits the offence and (subject to section 162(1)) is liable to be proceeded against and punished accordingly.

(3) In relation to an entity which is a body corporate, “officer” means—

(a) a director, manager, associate, secretary or other similar officer, or

(b) a person purporting to act in any such capacity.

In paragraph (a) “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(4) In relation to a partnership which is not regarded as a body corporate under the law under which it is formed, “officer” means—

(a) a partner, or

(b) a person purporting to act as a partner.

(5) In this section—

“body corporate” includes an entity incorporated outside the United Kingdom;

“offence” means an offence under this Act, except under Part 10.

165 Application of offences to providers that are not legal persons¶

(1) In this section a “relevant entity” means an entity that—

(a) is the provider of a regulated service, and

(b) is not a legal person under the law under which it is formed.

(2) Proceedings for an offence alleged to have been committed by a relevant entity must be brought against the entity in its own name (and not in that of any of its officers or members).

(3) For the purposes of such proceedings—

(a) rules of court relating to the service of documents have effect as if the entity were a body corporate; and

(b) the following provisions apply as they apply in relation to a body corporate—

(i) section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates’ Courts Act 1980;

(ii) section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) and Article 166 of, and Schedule 4 to, the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/ 1675 (N.I. 26)).

(4) A fine imposed on a relevant entity on its conviction of an offence must be paid out of the entity’s funds.

(5) If an offence is committed by a relevant entity and it is proved that the offence—

(a) has been committed with the consent or connivance of an officer of the entity, or

(b) is attributable to any neglect on the part of an officer of the entity,

the officer (as well as the entity) commits the offence and (subject to section 162(1)) is liable to be proceeded against and punished accordingly.

(6) In relation to a partnership, “officer” means—

(a) a partner, or

(b) a person purporting to act as a partner.

(7) In relation to a relevant entity other than a partnership, “officer” means—

(a) an officer of the entity or a person concerned in the management or control of the entity, or

(b) a person purporting to act in such a capacity.

(8) Subsection (2) is not to be read as prejudicing any liability of an officer under subsection (5).

(9) In this section “offence” means an offence under this Act, except under Part 10. Extra-territorial application

166 Extra-territorial application¶

(1) References in this Act to an internet service, a user-to-user service or a search service include such a service provided from outside the United Kingdom (as well as such a service provided from within the United Kingdom).

(2) The power to require the production of documents by an information notice includes power to require the production of documents held outside the United Kingdom.

(3) The power conferred by section 90 includes power to require the attendance for interview of an individual who is outside the United Kingdom.

(4) Section 113(7) (requirements enforceable in civil proceedings against a person) applies whether or not the person is in the United Kingdom.

167 Information offences: extra-territorial application and jurisdiction¶

(1) Sections 62, 92 and 95 apply to acts done by a person in the United Kingdom or elsewhere (information offences).

(2) Section 93 applies to acts done by an individual in the United Kingdom or elsewhere (offences by senior managers of providers of regulated services).

(3) Sections 164(2) and 165(5), so far as relating to an offence under a section specified in subsection (1) of this section, apply to acts done by an individual in the United Kingdom or elsewhere (liability of directors etc of providers of regulated services).

(4) In the case of an offence under section 62, 92, 93 or 95 which is committed outside the United Kingdom—

(a) proceedings for the offence may be taken at any place in the United Kingdom, and

(b) the offence may for all incidental purposes be treated as having been committed at any such place.

(5) In the application of subsection (4) to Scotland, any such proceedings against a person may be taken—

(a) in any sheriff court district in which the person is apprehended or is in custody, or

(b) in such sheriff court district as the Lord Advocate may determine.

(6) In this section—

“act” includes a failure to act;

“sheriff court district” is to be construed in accordance with the Criminal Procedure (Scotland) Act 1995 (see section 307(1) of that Act).

Publication by OFCOM¶

168 Publication by OFCOM¶

Anything required by this Act to be published by OFCOM must be published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

Service of notices¶

169 Service of notices¶

(1) This section applies in relation to a notice that may or must be given by OFCOM to a person under any provision of this Act.

(2) OFCOM may give a notice to a person by—

(a) delivering it by hand to the person,

(b) leaving it at the person’s proper address,

(d) sending it by email to the person’s email address.

(3) A notice to a body corporate may be given to any officer of that body.

(4) A notice to a partnership may be given to any partner or to a person who has the control or management of the partnership business.

(5) A notice to an entity that is not a legal person under the law under which it is formed (other than a partnership) may be given to any member of the governing body of the entity.

(6) In the case of a notice given to a person who is a provider of a regulated service, the person’s proper address for the purposes of paragraphs (b) and (c) of subsection (2), and section 7 of the Interpretation Act 1978 in its application to those paragraphs, is any address (within or outside the United Kingdom) at which OFCOM believe, on reasonable grounds, that the notice will come to the attention of the person or (where the person is an entity) any director or other officer of that entity.

(7) In the case of a notice given to a person other than a provider of a regulated service, a person’s proper address for the purposes of paragraphs (b) and (c) of subsection (2), and section 7 of the Interpretation Act 1978 in its application to those paragraphs, is—

(a) in the case of an entity, the address of the entity’s registered or principal office;

(b) in any other case, the person’s last known address.

(8) In the case of an entity registered or carrying on business outside the United Kingdom, or with offices outside the United Kingdom, the reference in subsection (7) to its principal office includes its principal office in the United Kingdom or, if the entity has no office in the United Kingdom, any place in the United Kingdom at which OFCOM believe, on reasonable grounds, that the notice will come to the attention of any director or other officer of that entity.

(9) In the case of a notice given to an individual under section 90 (interviews), the reference in subsection (7) to the person’s last known address is to the individual’s home address or, if the individual is currently connected with a provider of a regulated service, the address of the provider’s registered or principal office.

(10) For the purposes of subsection (2)(d), a person’s email address is—

(a) any email address published for the time being by that person as an address for contacting that person, or

(b) if there is no such published address, any email address by means of which OFCOM believe, on reasonable grounds, that the notice will come to the attention of that person or (where that person is an entity) any director or other officer of that entity.

(11) A notice sent by email is treated as given 48 hours after it was sent, unless the contrary is proved.

(12) In this section—

“director” includes any person occupying the position of a director, by whatever name called;

“officer”, in relation to an entity, includes a director, a manager, a partner, an associate, a secretary or, where the affairs of the entity are managed by its members, a member.

Repeals and amendments¶

170 Repeal of Part 4B of the Communications Act¶

(1) In the Communications Act, omit Part 4B (video-sharing platform services).

(2) In the Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), omit Part 4 (which inserts Part 4B into the Communications Act).

171 Repeals: Digital Economy Act 2017¶

(1) The Digital Economy Act 2017 is amended as follows.

(2) Omit—

(a) Part 3 (online pornography), and

(b) section 119(10) (power to extend that Part to the Channel Islands or the Isle of Man).

(3) Omit section 103 (code of practice for providers of online social media platforms).

172 Offences regarding indecent photographs of children: OFCOM defence¶

England and Wales¶

(1) Section 1B of the Protection of Children Act 1978 (defence to offence relating to indecent photographs of children) is amended in accordance with subsections (2) and (3).

(2) In subsection (1)—

(a) for “he”, in each place, substitute “the defendant”;

(b) for “him”, in each place, substitute “the defendant”;

(d) at the end of paragraph (c) insert “, or

(d) the defendant—

(i) was at the time of the offence charged a member of OFCOM, employed or engaged by OFCOM, or assisting OFCOM in the exercise of any of their online safety functions (within the meaning of section 188 of the Online Safety Act 2022), and

(ii) made the photograph or pseudo-photograph for the purposes of OFCOM’s exercise of any of those functions.”

(3) After subsection (2) insert—

(3) In this section “OFCOM” means the Office of Communications.

Scotland¶

(4) Section 52 of the Civic Government (Scotland) Act 1982 (indecent photographs of children) is amended in accordance with subsections (5) and (6).

(5) After subsection (4) insert—

(4A) Where a person is charged with an offence under subsection (1)(a) of making an indecent photograph or pseudo-photograph of a child, it shall be a defence for the person to prove that—
(a) at the time of the offence charged, the person was a member of OFCOM, employed or engaged by OFCOM, or assisting OFCOM in the exercise of any of their online safety functions (within the meaning of section 188 of the Online Safety Act 2022), and
(b) the person made the photograph or pseudo-photograph for the purposes of OFCOM’s exercise of any of those functions.”

(6) In subsection (8), after paragraph (d) insert—

(e) “OFCOM” means the Office of Communications.

Northern Ireland¶

(7) Article 3A of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (defence to offence relating to indecent photographs of children) is amended in accordance with subsections (8) and (9).

(8) In paragraph (1)—

(a) for “he”, in each place, substitute “the defendant”;

(b) for “him”, in each place, substitute “the defendant”;

(d) at the end of sub-paragraph (c) insert “, or

(d) the defendant—

(ii) made the photograph or pseudo-photograph for the purposes of OFCOM’s exercise of any of those functions.”

(9) After paragraph (2) insert—

(3) In this Article “OFCOM” means the Office of Communications.

Powers to amend Act¶

173 Powers to amend section 36¶

(1) The Secretary of State may by regulations amend section 36 (fraud etc offences).

But the power to add an offence to that section is limited by subsections (2) and (3).

(2) An offence may be added to section 36 only if the Secretary of State considers it appropriate to do so because of—

(a) the prevalence on Category 1 services of content (other than regulated user-generated content) consisting of paid-for advertisements that amount to that offence, or the prevalence in or via search results of Category 2A services of paid-for advertisements that amount to that offence,

(b) the risk of harm to individuals in the United Kingdom presented by such advertisements, and

(3) An offence may not be added to section 36 if—

(a) the offence concerns—

(i) the infringement of intellectual property rights,

(ii) the safety or quality of goods (as opposed to what kind of goods they are), or

(iii) the performance of a service by a person not qualified to perform it; or

(b) it is an offence under the Consumer Protection from Unfair Trading Regulations 2008 (S.I. 2008/1277).

(4) In this section—

(a) “regulated user-generated content” has the same meaning as in Part 3 (see section 49);

(b) the words “in or via search results” are to be construed in accordance with section 35;

(c) references to advertisements that amount to an offence are to be construed in accordance with section 52 (see subsections (3) and (9) of that section).

174 Powers to amend or repeal provisions relating to exempt content or services¶

(1) The Secretary of State may by regulations—

(a) amend section 49(5), or

(b) repeal section 49(2)(d) and (5), and make a consequential amendment of sections 2(6), 4(2)(a) and 49(2)(f),

if the Secretary of State considers that it is appropriate to do so because of the risk of harm to individuals in the United Kingdom presented by one-to-one live aural communications.

(2) The Secretary of State may by regulations—

(a) amend section 49(6) or (7), or

(b) repeal section 49(2)(e), (6) and (7), and make a consequential amendment of sections 2(6), 4(2)(a) and 49(2)(f),

if the Secretary of State considers that it is appropriate to do so because of the risk of harm to individuals in the United Kingdom presented by comments and reviews on provider content.

(3) The Secretary of State may by regulations amend Part 1 of Schedule 1 to provide for a further description of user-to-user service or search service to be exempt, if the Secretary of State considers that the risk of harm to individuals in the United Kingdom presented by a service of that description is low.

(4) Regulations under subsection (3) may amend sections 2, 4 and 49 and Schedule 2 in connection with the amendment of Part 1 of Schedule 1.

(5) The Secretary of State may by regulations amend Schedule 9 to provide for a further description of internet service to be included, if the Secretary of State considers that the risk of harm to children in the United Kingdom presented by regulated provider pornographic content published or displayed on a service of that description is low.

(6) If the condition in subsection (7) is met, the Secretary of State may by regulations amend or repeal any of the following—

(a) paragraph 3 of Schedule 1 (services offering only one-to-one live aural communications);

(b) paragraph 4 of that Schedule (limited functionality services);

(7) The condition is that the Secretary of State considers that it is appropriate to amend or repeal the provision in question (as the case may be) because of the risk of harm to individuals in the United Kingdom presented by a service of the description in question.

(8) Regulations under subsection (6) may amend or repeal a provision of Schedule 2 in connection with the amendment or repeal of a provision of Part 1 of Schedule 1.

(9) Regulations under subsection (6)(c) may amend or repeal a provision of sections 2, 4 and 49 in connection with the amendment or repeal of a provision of Part 1 of Schedule 1.

(10) The Secretary of State may by regulations amend or repeal any provision of Schedule 9 added in exercise of the power conferred by subsection (5), if the Secretary of State considers that it is appropriate to do so because of the risk of harm to children in the United Kingdom presented by regulated provider pornographic content published or displayed on a service of that description.

(11) In this section, “regulated provider pornographic content” and “published or displayed” have the same meaning as in Part 5 (see section 66).

175 Powers to amend Part 2 of Schedule 1¶

England¶

(1) The Secretary of State may by regulations amend the part of the list in Part 2 of Schedule 1 which relates to England—

(a) if there has been an amendment or repeal of legislation, or of a provision of legislation, by reference to which a description of education or childcare is framed;

(b) to add a further description of education or childcare, if the Secretary of State considers that it is appropriate to do so because of the application of enactments other than this Act, or guidance or requirements (however referred to) produced under enactments other than this Act, to persons providing education or childcare of that description;

(c) to omit a description of education or childcare, if the Secretary of State considers that it is appropriate to do so because of the risk of harm to individuals in England presented by services provided by persons providing education or childcare of that description which are provided for the purposes of such education or childcare (other than a service described in paragraph 7 of Schedule 1).

(2) In subsection (1)(b), “enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978).

Scotland¶

(3) The Scottish Ministers may by regulations amend the part of the list in Part 2 of Schedule 1 which relates to Scotland—

(a) if there has been an amendment or repeal of legislation, or of a provision of legislation, by reference to which a description of education or childcare is framed;

(b) to add a further description of education or childcare, if the Scottish Ministers consider that it is appropriate to do so because of the application of enactments other than this Act, or guidance or requirements (however referred to) produced under enactments other than this Act, to persons providing education or childcare of that description;

(c) to omit a description of education or childcare, if the Scottish Ministers consider that it is appropriate to do so because of the risk of harm to individuals in Scotland presented by services provided by persons providing education or childcare of that description which are provided for the purposes of such education or childcare (other than a service described in paragraph 7 of Schedule 1).

(4) In subsection (3)(b), “enactment” includes an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament.

Wales¶

(5) The Welsh Ministers may by regulations made by statutory instrument amend the part of the list in Part 2 of Schedule 1 which relates to Wales—

(a) if there has been an amendment or repeal of legislation, or of a provision of legislation, by reference to which a description of education or childcare is framed;

(b) to add a further description of education or childcare, if the Welsh Ministers consider that it is appropriate to do so because of the application of enactments other than this Act, or guidance or requirements (however referred to) produced under enactments other than this Act, to persons providing education or childcare of that description;

(c) to omit a description of education or childcare, if the Welsh Ministers consider that it is appropriate to do so because of the risk of harm to individuals in Wales presented by services provided by persons providing education or childcare of that description which are provided for the purposes of such education or childcare (other than a service described in paragraph 7 of Schedule 1).

(6) In subsection (5)(b), “enactment” includes an enactment contained in, or in an instrument made under, a Measure or Act of Senedd Cymru.

Northern Ireland¶

(7) The relevant Department may by regulations amend the part of the list in Part 2 of Schedule 1 which relates to Northern Ireland—

(a) if there has been an amendment or repeal of legislation, or of a provision of legislation, by reference to which a description of education or childcare is framed;

(b) to add a further description of education or childcare, if the relevant Department considers that it is appropriate to do so because of the application of enactments other than this Act, or guidance or requirements (however referred to) produced under enactments other than this Act, to persons providing education or childcare of that description;

(c) to omit a description of education or childcare, if the relevant Department considers that it is appropriate to do so because of the risk of harm to individuals in Northern Ireland presented by services provided by persons providing education or childcare of that description which are provided for the purposes of such education or childcare (other than a service described in paragraph 7 of Schedule 1).

(8) In subsection (7), “the relevant Department” means—

(a) where the amendment relates to childcare, primary education or secondary education, the Department of Education in Northern Ireland;

(b) where the amendment relates to further education or higher education, the Department for the Economy in Northern Ireland with the concurrence of the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland with the concurrence of the Department for the Economy in Northern Ireland;

(c) where the amendment relates to education in agriculture and related subjects, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.

(9) In subsection (7)(b), “enactment” includes an enactment contained in, or in an instrument made under, Northern Ireland legislation.

Interpretation¶

(10) In this section, the following terms have the same meaning as in Schedule 1—

“childcare”;

“education”;

“education in agriculture and related subjects”;

“further education”;

“higher education”;

“primary education”;

“secondary education”.

176 Powers to amend Schedules 5, 6 and 7¶

(1) The Secretary of State may by regulations amend—

(a) Schedule 5 (terrorism offences);

(b) Part 1 of Schedule 6 (child sexual exploitation and abuse offences).

(2) The Scottish Ministers may by regulations amend Part 2 of Schedule 6.

(3) The Secretary of State may by regulations amend Schedule 7 (priority offences).

But the power to add an offence to that Schedule is limited by subsections (4) and (5).

(4) An offence may be added to Schedule 7 only if the Secretary of State considers it appropriate to do so because of—

(a) the prevalence on regulated user-to-user services of regulated user- generated content that amounts to that offence, or the prevalence on regulated search services and combined services of search content that amounts to that offence,

(b) the risk of harm to individuals in the United Kingdom presented by regulated user-generated content or search content that amounts to that offence, and

(5) An offence may not be added to Schedule 7 if—

(a) the offence concerns—

(i) the infringement of intellectual property rights,

(ii) the safety or quality of goods (as opposed to what kind of goods they are), or

(iii) the performance of a service by a person not qualified to perform it; or

(b) it is an offence under the Consumer Protection from Unfair Trading Regulations 2008 (S.I. 2008/1277).

(6) In this section—

(a) “regulated user-generated content” has the same meaning as in Part 3 (see section 49);

(b) “search content” has the same meaning as in Part 3 (see section 51);

(c) references to content that amounts to an offence are to be construed in accordance with section 52 (see subsections (3) and (9) of that section). Regulations

177 Power to make consequential provision¶

(1) The Secretary of State may by regulations make provision that is consequential on this Act or regulations under this Act.

(2) The regulations may—

(a) amend or repeal provision made by the Communications Act;

(b) amend or revoke provision made under that Act.

(3) The regulations may make transitional, transitory or saving provision.

178 Regulations: general¶

(1) Regulations under this Act may make different provision for different purposes and may, in particular—

(a) make different provision with regard to—

(i) user-to-user services,

(ii) search services, and

(iii) internet services, other than regulated user-to-user services or regulated search services, that are within section 67(2);

(b) make different provision with regard to user-to-user services of different kinds;

(d) make different provision with regard to different kinds of services mentioned in paragraph (a)(iii);

(e) make different provision with regard to different kinds of internet services within section 67(2).

(2) A power to make regulations under this Act includes power to make supplementary, incidental, transitional, transitory or saving provision.

This subsection does not apply to regulations under section 177 (consequential provision).

(3) Any power of the Secretary of State under this Act to make regulations is exercisable by statutory instrument.

(4) This section does not apply to regulations under section 193 (commencement and transitional provision).

179 Parliamentary procedure for regulations¶

(1) A statutory instrument containing (whether alone or with other provision)—

(a) regulations under section 64(12),

(b) regulations under section 97(2),

(d) regulations under section 173(1),

(e) regulations under section 174(1), (2), (3), (5), (6) or (10),

(f) regulations under section 175(1),

(g) regulations under section 176(1) or (3),

(h) regulations under section 177 that amend or repeal provision made by the Communications Act,

(i) regulations under paragraph 7 of Schedule 4, or

(j) regulations under paragraph 32 of Schedule 8,

may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(2) A statutory instrument containing regulations under—

(a) section 53(2) or (3), or

(b) section 54(2),

may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(3) But a statutory instrument mentioned in subsection (2) may be made without a draft of the instrument being laid before, and approved by a resolution of, each House of Parliament if it contains a declaration that the Secretary of State is of the opinion that, because of urgency, it is necessary to make the regulations without a draft being so laid and approved.

(4) After an instrument is made in accordance with subsection (3), it must be laid before Parliament.

(5) Regulations contained in an instrument made in accordance with subsection (3) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.

(6) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—

(a) Parliament is dissolved or prorogued, or

(b) either House of Parliament is adjourned for more than 4 days.

(7) If regulations cease to have effect as a result of subsection (5), that does not—

(a) affect the validity of anything previously done under or by virtue of the regulations, or

(b) prevent the making of new regulations.

(8) A statutory instrument containing—

(a) regulations under section 60(1),

(b) regulations under section 70(3)(b),

(d) regulations under section 177 that do not amend or repeal provision made by the Communications Act, or

(e) regulations under paragraph 1(1), (2) or (3) of Schedule 10,

is subject to annulment in pursuance of a resolution of either House of Parliament.

(9) Regulations made by the Scottish Ministers under—

(a) section 175(3), and

(b) section 176(2),

are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)).

(10) A statutory instrument containing regulations under section 175(5) may not be made by the Welsh Ministers unless a draft of the instrument has been laid before and approved by a resolution of Senedd Cymru.

(11) The power of the relevant Department to make regulations under section 175(7) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(12) Regulations may not be made by the relevant Department under section 175(7) unless a draft of the regulations has been laid before and approved by a resolution of the Northern Ireland Assembly.

(13) In subsections (11) and (12), “the relevant Department” has the same meaning as in section 175(7) (see subsection (8) of that section).

Part 12 Interpretation and final provisions¶

Interpretation¶

180 “Provider” of internet service¶

(1) This section applies to determine who is the “provider” of an internet service for the purposes of this Act.

User-to-user services (other than combined services)¶

(2) The provider of a user-to-user service is to be treated as being the entity that has control over who can use the user-to-user part of the service (and that entity alone).

(3) If no entity has control over who can use the user-to-user part of a user-to-user service, but an individual or individuals have control over who can use that part, the provider of the service is to be treated as being that individual or those individuals.

Search services¶

(4) The provider of a search service is to be treated as being the entity that has control over the operations of the search engine (and that entity alone).

(5) If no entity has control over the operations of the search engine, but an individual or individuals have control over those operations, the provider of the search service is to be treated as being that individual or those individuals. Combined services

(6) The provider of a combined service is to be treated as being the entity that has control over both—

(a) who can use the user-to-user part of the service, and

(b) the operations of the search engine,

(and that entity alone).

(7) If no entity has control over the matters mentioned in paragraphs (a) and (b) of subsection (6), but an individual or individuals have control over both those matters, the provider of the combined service is to be treated as being that individual or those individuals.

Internet services other than user-to-user services or search services¶

(8) The provider of an internet service, other than a user-to-user service or a search service, is to be treated as being the entity that has control over which content is published or displayed on the service.

(9) If no entity has control over which content is published or displayed on such an internet service, but an individual or individuals have control over which content is published or displayed, the provider of the service is to be treated as being that individual or those individuals.

Machine-generated services¶

(10) The provider of an internet service that is generated by a machine is to be treated as being the entity that controls the machine (and that entity alone).

(11) If no entity controls the machine, but an individual or individuals control it, the provider of the internet service is to be treated as being that individual or those individuals.

Interpretation ¶

(12) A person who provides an access facility in relation to a user-to-user service, within the meaning of section 125, is not to be regarded as a person who has control over who can use the user-to-user part of the service for the purposes of this section.

(13) In this section “operations of the search engine” means operations which—

(a) enable users of a search service or a combined service to make search requests, and

(b) generate responses to those requests.

(14) In this section “published or displayed” is to be construed in accordance with section 66(5) and (6).

181 “User”, “United Kingdom user” and “interested person”¶

(1) For the purposes of this Act a user is a “United Kingdom user” of a service if—

(a) where the user is an individual, the individual is in the United Kingdom;

(b) where the user is an entity, the entity is incorporated or formed under the law of any part of the United Kingdom.

(2) For the purposes of references in this Act to a user of a service it does not matter whether a person is registered to use a service.

(3) References in this Act to a user of a service do not include references to any of the following when acting in the course of the provider’s business—

(a) where the provider of the service is an individual or individuals, that individual or those individuals;

(b) where the provider is an entity, officers of the entity;

(d) any other person providing a business service to the provider such as a contractor, consultant or auditor.

(4) In subsection (3) “acting in the course of the provider’s business” means (as the case may be)—

(a) acting in the course of the provider’s business of providing the service, or

(b) acting in the course of a business, trade, profession or other concern—

(i) carried on (whether or not for profit) by the provider of the service, and

(ii) for the purposes of which the service is provided.

(5) In subsections (1) to (4)⁴ “service” (except in the term “business service”) means internet service, user-to-user service or search service.

(6) In subsection (3) “officer” includes a director, manager, partner, associate, secretary or other similar officer.

(7) In this Act “interested person”, in relation to a search service or a combined service, means a person that is responsible for a website or database capable of being searched by the search engine, provided that—

(a) in the case of an individual, the individual is in the United Kingdom;

(b) in the case of an entity, the entity is incorporated or formed under the law of any part of the United Kingdom.

182 “Internet service”¶

(1) In this Act “internet service” means a service that is made available by means of the internet.

(2) For the purposes of subsection (1) a service is “made available by means of the internet” even where it is made available by means of a combination of—

(a) the internet, and

(b) an electronic communications service.

(3) “Electronic communications service” has the same meaning as in the Communications Act (see section 32(2) of that Act).

183 “Search engine”¶

(1) In this Act “search engine”—

(a) includes a service or functionality which enables a person to search some websites or databases (as well as a service or functionality which enables a person to search (in principle) all websites or databases);

(b) does not include a service which enables a person to search just one website or database.

(2) For the purposes of this Act, a search engine is not to be taken to be “included” in an internet service or a user-to-user service if the search engine is controlled by a person who does not control other parts of the service.

184 “Proactive technology”¶

(1) In this Act “proactive technology” means—

(a) content moderation technology,

(b) user profiling technology, or

but this is subject to subsections (3) and (7).

(2) “Content moderation technology” means technology, such as algorithms, keyword matching, image matching or image classification, which—

(a) analyses relevant content to assess whether it is illegal content or content that is harmful to children, or

(b) analyses content to assess whether it is a fraudulent advertisement.

(3) But content moderation technology is not to be regarded as proactive technology if it is used in response to a report from a user or other person about particular content.

(4) “User profiling technology” means technology which analyses (any or all of)—

(a) relevant content,

(b) user data, or

for the purposes of building a profile of a user to assess characteristics such as age.

(5) Technology which—

(a) analyses data specifically provided by a user for the purposes of the provider assessing or establishing the user’s age in order to decide whether to allow the user to access a service (or part of a service) or particular content, and

(b) does not analyse any other data or content,

is not to be regarded as user profiling technology.

(6) “Behaviour identification technology” means technology which analyses (any or all of)—

(a) relevant content,

(b) user data, or

to assess a user’s online behaviour or patterns of online behaviour (for example, to assess whether a user may be involved in, or be the victim of, illegal activity).

(7) But behaviour identification technology is not to be regarded as proactive technology if it is used in response to concerns identified by another person or an automated tool about a particular user.

(8) “Relevant content” means—

(a) in relation to a user-to-user service, content that is user-generated content in relation to the service;

(b) in relation to a search service, the content of websites and databases capable of being searched by the search engine.

(9) “User data” means—

(a) data provided by users, including personal data (for example, data provided when a user sets up an account), and

(b) data created, compiled or obtained by providers of Part 3 services and relating to users (for example, data relating to when or where users access a service or how they use it).

(10) References in this Act to proactive technology include content moderation technology, user profiling technology or behaviour identification technology which utilises artificial intelligence or machine learning.

(11) Accredited technology that may be required to be used in relation to the detection of terrorism content or CSEA content (or both) by a notice under section 103(1) is an example of content moderation technology.

(12) The reference in subsection (8)(b) to a search service includes a reference to the search engine of a combined service.

(13) In this section—

“accredited” technology has the same meaning as in Chapter 5 of Part 7 (see section 105(9));

“content that is harmful to children” has the same meaning as in Part 3 (see section 53);

“fraudulent advertisement” has the meaning given by section 34 or 35 (depending on the kind of service in question);

“illegal content”, “terrorism content” and “CSEA content” have the same meaning as in Part 3 (see section 52);

“user-generated content” has the meaning given by section 49 (see subsections (3) and (4) of that section).

185 Content communicated “publicly” or “privately”¶

(1) This section specifies factors which OFCOM must, in particular, consider when deciding whether content is communicated “publicly” or “privately” by means of a user-to-user service for the purposes of—

(a) section 103 (notice to deal with terrorism content),

(b) section 116 (requirement to use proactive technology), or

(2) The factors are—

(a) the number of individuals in the United Kingdom who are able to access the content by means of the service;

(b) any restrictions on who may access the content by means of the service (for example, a requirement for approval or permission from a user, or the provider, of the service);

(c) the ease with which the content may be forwarded to or shared with users of the service other than those who originally encounter it.

(3) The following factors do not count as restrictions on access—

(a) a requirement to log in to or register with a service (or part of a service);

(b) a requirement to make a payment or take out a subscription in order to access a service (or part of a service) or to access particular content;

(c) inability to access a service (or part of a service) or to access particular content except by using particular technology or a particular kind of device (as long as that technology or device is generally available to the public).

186 “Functionality”¶

(1) In this Act “functionality”, in relation to a user-to-user service, includes any feature that enables interactions of any description between users of the service by means of the service, and includes any feature enabling a user to do anything listed in subsection (2).

(2) The things are—

(a) creating a user profile, including an anonymous or pseudonymous profile;

(b) searching within the service for user-generated content or other users of the service;

(d) sharing content on other internet services;

(e) sending direct messages to or speaking to other users of the service, or interacting with them in another way (for example by playing a game);

(f) expressing a view on content, including, for example, by—

(i) applying a “like” or “dislike” button or other button of that nature,

(ii) applying an emoji or symbol of any kind,

(iii) engaging in yes/no voting, or

(iv) rating or scoring content in any way (including giving star or numerical ratings);

(g) sharing current or historic location information with other users of the service, recording a user’s movements, or identifying which other users of the service are nearby;

(h) following or subscribing to particular kinds of content or particular users of the service;

(i) creating lists, collections, archives or directories of content or users of the service;

(j) tagging or labelling content present on the service;

(k) uploading content relating to goods or services;

(l) applying or changing settings on the service which affect the presentation of user-generated content on the service;

(m) accessing other internet services through content present on the service (for example through hyperlinks).

(3) In this Act “functionality”, in relation to a search service, includes (in particular)—

(a) a feature that enables users to search websites or databases;

(b) a feature that makes suggestions relating to users’ search requests (predictive search functionality).

(4) In this section “user-generated content” has the meaning given by section 49 (see subsections (3) and (4) of that section).

187 “Harm” etc¶

(1) This section applies for the purposes of this Act, apart from Part 10 (communications offences).

(2) “Harm” means physical or psychological harm.

(3) References to harm presented by content, and any other references to harm in relation to content, include references to harm arising or that may arise from any one or combination of the following—

(a) the nature of the content;

(b) the fact of its dissemination;

(c) the manner of its dissemination (for example, content repeatedly sent to an individual by one person or by different people).

(4) References to harm presented by content, and any other references to harm in relation to content, include references to harm arising or that may arise in the following circumstances—

(a) where, as a result of the content, individuals act in a way that results in harm to themselves or that increases the likelihood of harm to themselves;

(b) where, as a result of the content, individuals do or say something to another individual that results in harm to that other individual or that increases the likelihood of such harm (including, but not limited to, where individuals act in such a way as a result of content that is related to that other individual’s characteristics or membership of a group).

(5) References to a risk of harm, or to potential harm, are to be read in the same way as references to harm.

(6) In contexts where harm (or a risk of harm or potential harm) relates to children or adults, subsections (3) and (4) are to be read as if they referred to children or adults (as the case may be) instead of individuals.

188 “Online safety functions” and “online safety matters”¶

(1) In this Act references to OFCOM’s “online safety functions”—

(a) are references to—

(i) the functions that OFCOM have under this Act,

(ii) the functions that OFCOM have under the provisions of the Communications Act listed in subsection (2), so far as those functions relate to regulated services or Part 3 services (as the case may be), and

(iii) the functions that OFCOM have under section 3 of the Communications Act (general duties), so far as duties under that section relate to a function which is an online safety function by reason of sub-paragraph (i) or (ii);

(b) include references to OFCOM’s power to do anything appearing to them to be incidental or conducive to the carrying out of any of their functions within paragraph (a)(i) or (ii) (see section 1(3) of the Communications Act).

(2) These are the provisions of the Communications Act referred to in subsection (1)(a)(ii)—

(a) section 6 (duties to review regulatory burdens);

(b) section 7 (duty to carry out impact assessments);

(d) section 11 (duty to promote media literacy);

(e) sections 12 and 13 (Content Board);

(f) section 14(6)(a) (research about media literacy);

(g) section 14(6B) (research about users’ experience of regulated services);

(h) section 16 (consumer consultation);

(i) section 20 (advisory committees for different parts of the United Kingdom);

(j) section 21 (advisory committee on elderly and disabled persons);

(k) section 22 (representation on international and other bodies);

(l) section 26 (publication of information and advice for consumers etc).

(3) In this Act “online safety matters” means the matters to which OFCOM’s online safety functions relate.

189 Interpretation: general¶

(1) In this Act—

“adult” means a person aged 18 or over;

“age assurance” means measures designed to estimate or verify the age or age-range of users of a service;

“audit notice” means a notice given under paragraph 4 of Schedule 11;

“capacity”: any reference to the capacity of a provider of a regulated service is to—

(a) the financial resources of the provider, and

(b) the level of technical expertise which is available to the provider, or which it is reasonable to expect would be available to the provider given its size and financial resources;

“child” means a person under the age of 18;

“the Communications Act” means the Communications Act 2003;

“confirmation decision” means a notice given under section 112;

“content” means anything communicated by means of an internet service, whether publicly or privately, including written material or messages, oral communications, photographs, videos, visual images, music and data of any description;

“the Convention” has the meaning given by section 21(1) of the Human Rights Act 1998;

“country” includes territory;

“document” means anything in which information (in whatever form) is recorded;

“encounter”, in relation to content, means read, view, hear or otherwise experience content;

“entity” means a body or association of persons or an organisation, regardless of whether the body, association or organisation is—

(a) formed under the law of any part of the United Kingdom or of a country outside the United Kingdom, or

(b) a legal person under the law under which it is formed;

“identifying content” means content the function of which is to identify a user of an internet service (for example, a user name or profile picture);

“information notice” means a notice given under section 85(1);

“maximum summary term for either-way offences”, with reference to imprisonment for an offence, means—

(a) if the offence is committed before the time when paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 comes into force, 6 months;

(b) if the offence is committed after that time, 12 months;

“measure”: any reference to a measure includes a reference to any system or process relevant to the operation of an internet service or any step or action which may be taken by a provider of an internet service to comply with duties or requirements under this Act;

“notice” means notice in writing;

“notify” means notify in writing, and “notification” is to be construed accordingly;

“OFCOM” means the Office of Communications;

“paid-for advertisement”: an advertisement is a “paid-for advertisement” in relation to an internet service if—

(a) the provider of the service receives any consideration (monetary or non-monetary) for the advertisement (whether directly from the advertiser or indirectly from another person), and

(b) the placement of the advertisement is determined by systems or processes that are agreed between the parties entering into the contract relating to the advertisement;

“person” includes (in addition to an individual and a body of persons corporate or unincorporate) any organisation or association of persons;

“personal data” has the meaning given by section 3(2) of the Data Protection Act 2018;

“processing” has the meaning given by section 3(4) of the Data Protection Act 2018;

“provisional notice of contravention” means a notice given under section 110;

“publicly available” means available to members of the public in the United Kingdom;

“systems and/or processes”: any reference to systems and/or processes is to human or automated systems and/or processes, and accordingly includes technologies;

“taking down” (content): any reference to taking down content is to any action that results in content being removed from a user-to-user service or being permanently hidden so users of the service cannot encounter it (and related expressions are to be read accordingly);

“terms of service”, in relation to a user-to-user service, means all documents (whatever they are called) comprising the contract for use of the service (or of part of it) by United Kingdom users;

“user-to-user part”, in relation to a user-to-user service, means the part of the service on which content that is user-generated content in relation to the service is present.

(2) The definitions of “encounter” and “person” in subsection (1) do not apply for the purposes of Part 10 (for the definition of “encounter” in that Part, see section 153(5)).

(3) References in this Act to a kind of user-to-user service or search service (or Part 3 service) include references to user-to-user services or search services grouped together for the purposes of a risk profile prepared by OFCOM under section 83 (and references to different kinds of user-to-user services or search services (or Part 3 services) are to be read accordingly).

(4) References in this Act to content (or content of a particular description) present or prevalent on a user-to-user service (or on a part of it), or to the presence, incidence or prevalence of content (or content of a particular description) on a user-to-user service (or on a part of it), do not include, in the case of a user-to- user service that includes a search engine—

(a) search content, or

(b) any other content that, following a search request, may be encountered as a result of subsequent interactions with internet services.

In this subsection “search content” and “search request” have the same meaning as in Part 3 (see section 51).

(5) For the purposes of this Act—

(a) any reference to the use of or access to a service, or to content present, published or displayed on a service, is to be taken to include use of or access to the service or content on registering or on the making of a payment or on subscription;

(b) any reference to content that is made available or that may be accessed, encountered or shared, is to be taken to include content that is made available or that may be accessed, encountered or shared for a limited period of time only.

(6) For the purposes of this Act, content that is user-generated content in relation to an internet service does not cease to be such content in relation to the service when published or displayed on the service by means of software or an automated tool or algorithm applied by the provider of the service or applied by a person acting on behalf of that provider.

(7) Nothing in this Act (other than section 171) affects any prohibition or restriction in relation to pornographic content (within the meaning of section 66(2)), or powers in relation to such content, under another enactment or rule of law.

(8) In this section, “user-generated content” has the meaning given by section 49 (see subsections (3) and (4) of that section).

190 Index of defined terms¶

The following table sets out terms defined or explained for this Act or for a Part of this Act.

TermProvision adultsection 189 age assurancesection 189 TermProvision audit noticesection 189 capacity (of a provider)section 189 Category 1 servicesection 81(10)(a) Category 2A servicesection 81(10)(b) Category 2B servicesection 81(10)(c) charging year (in Part 6)section 76 childsection 189 children’s access assessment (in Part 3)section 31 combined servicesection 3(7) the Communications Actsection 189 confirmation decisionsection 189 contentsection 189 content that is harmful to adults (in Part 3)section 54 content that is harmful to children (in Part 3)section 53 the Conventionsection 189 countrysection 189 CSEA content (in Part 3)section 52 documentsection 189 encounter (content) (except in Part 10)section 189 entitysection 189 functionalitysection 186 harm (except in Part 10)section 187 identifying contentsection 189 illegal content (in Part 3)section 52 information noticesection 189 initial charging year (in Part 6)section 76 interested personsection 181 internet servicesection 182 (see also section 166(1)) likely to be accessed by children (in Part 3)section 33 TermProvision maximum summary term for either-way offencessection 189 measuresection 189 news publisher content (in Part 3)section 49(8) to (10)³ non-designated content that is harmful to children (in Part 3)section 53 noticesection 189 notify, notificationsection 189 OFCOMsection 189 online safety functionssection 188 online safety matterssection 188 paid-for advertisementsection 189 Part 3 servicesection 3(3) person (except in Part 10)section 189 personal datasection 189 pornographic content (in Part 5)section 66 primary priority content that is harmful to children (in Part 3)section 53 priority content that is harmful to adults (in Part 3)section 54 priority content that is harmful to children (in Part 3)section 53 priority illegal content (in Part 3)section 52 proactive technologysection 184 processing (of data)section 189 providersection 180 provider pornographic content (in Part 5)section 66 provisional notice of contraventionsection 189 publicly availablesection 189

publicly/privately (in relation to section 185

communication of content)

published or displayed (in relation to pornographic content) (in Part 5)section 66 TermProvision recognised news publisher (in Part 3)section 50 regulated provider pornographic content (in Part 5)section 66 regulated search servicesection 3(2) regulated servicesection 3(4) regulated user-generated content (in Part 3)section 49 regulated user-to-user servicesection 3(2) searchsection 51 search contentsection 51 search enginesection 183 search requestsection 51 search resultssection 51 search servicesection 2 (see also section 166(1)) systems and/or processessection 189 taking down (content)section 189 terms of servicesection 189 terrorism content (in Part 3)section 52 United Kingdom usersection 181 usersection 181 user-generated content (in Part 3)section 49(3) and (4) user-to-user part (of a service)section 189 user-to-user servicesection 2 (see also section 166(1))

Final provisions¶

191 Financial provisions¶

There is to be paid out of money provided by Parliament—¶

(a) any expenditure incurred under or by virtue of this Act by the Secretary of State, and

(b) any increase attributable to this Act in the sums payable under any other Act out of money so provided.

192 Extent¶

(1) Except as provided by subsections (2) to (7)⁶, this Act extends to England and Wales, Scotland and Northern Ireland.

(2) In Part 10 (communications offences)—

(a) sections 150 to 155⁶ extend to England and Wales only;

(b) section 157(1) extends to England and Wales only.

(3) Section 157(2) extends to England and Wales and Northern Ireland.

(4) The following provisions extend to England and Wales only—

(a) section 156;

(b) section 172(1) to (3)³.

(5) Section 172(4) to (6)³ extends to Scotland only.

(6) Section 172(7) to (9)³ extends to Northern Ireland only.

(7) An amendment or repeal made by Schedule 13 has the same extent within the United Kingdom as the provision amended or repealed.

(8) The power conferred by section 411(6) of the Communications Act may be exercised so as to extend to any of the Channel Islands or the Isle of Man the repeal of provisions of section 127 of that Act made by section 157(1).

(9) The power conferred by section 338 of the Criminal Justice Act 2003 may be exercised so as to extend to any of the Channel Islands or the Isle of Man the amendment of provisions of that Act made by paragraph 5 of Schedule 13.

(10) The power conferred by section 60(6) of the Modern Slavery Act 2015 may be exercised so as to extend to any of the Channel Islands or the Isle of Man the amendment of Schedule 4 to that Act made by paragraph 7 of Schedule 13.

(11) The power conferred by section 415(1) of the Sentencing Act 2020 may be exercised so as to extend to any of the Channel Islands or the Isle of Man the amendment of Schedule 18 to that Act made by paragraph 8 of Schedule 13.

193 Commencement and transitional provision¶

(1) The following provisions come into force on the day on which this Act is passed—

(a) Part 1;

(b) sections 2 and 3 and Schedules 1 and 2;

(d) sections 49 to 51³;

(e) section 52 and Schedules 5, 6 and 7;

(f) sections 53 to 55³;

(g) section 66;

(h) section 67(4);

(i) section 166(1);

(j) section 171;

(k) sections 175 to 179⁵;

(l) this Part.

(2) The other provisions of this Act come into force on such day as the Secretary of State may by regulations appoint.

(3) The power to make regulations under subsection (2) includes power to appoint different days for different purposes.

(4) The Secretary of State may by regulations make transitional, transitory or saving provision in connection with the coming into force of any provision of this Act.

(5) The power to make regulations under subsection (4) includes power to make different provision for different purposes.

(6) Regulations under this section are to be made by statutory instrument.

194 Short title¶

This Act may be cited as the Online Safety Act 2022.

Schedules¶

Schedule 1 Exempt user-to-user and search services¶

Sections 2 and 3

Part 1 Descriptions of services which are exempt¶

Email services¶

1 A user-to-user service is exempt if emails are the only user-generated content (other than identifying content) enabled by the service.

SMS and MMS services¶

(1) A user-to-user service is exempt if SMS messages are the only user- generated content (other than identifying content) enabled by the service.

(2) A user-to-user service is exempt if MMS messages are the only user- generated content (other than identifying content) enabled by the service.

(3) A user-to-user service is exempt if SMS messages and MMS messages are the only user-generated content (other than identifying content) enabled by the service.

(4) “SMS message” and “MMS message” have the meaning given by section 49(12).

Services offering only one-to-one live aural communications¶

(1) A user-to-user service is exempt if one-to-one live aural communications are the only user-generated content (other than identifying content) enabled by the service.

(2) “One-to-one live aural communications” has the meaning given by section 49(5).

Limited functionality services¶

(1) A user-to-user service is exempt if the functionalities of the service are limited, such that users are able to communicate by means of the service only in the following ways—

(a) posting comments or reviews relating to provider content;

(b) sharing such comments or reviews on a different internet service;

(i) applying a “like” or “dislike” button or other button of that nature,

(ii) applying an emoji or symbol of any kind,

(iii) engaging in yes/no voting, or

(iv) rating or scoring the content (or the comments or reviews) in any way (including giving star or numerical ratings);

(d) producing or displaying identifying content in connection with any of the activities described in paragraphs (a) to (c)³.

(2) In sub-paragraph (1), “provider content” means content published on a service by the provider of the service or by a person acting on behalf of the provider (including where the publication of the content is effected or controlled by means of software or an automated tool or algorithm applied by the provider or by a person acting on behalf of the provider).

(3) For the purposes of this paragraph, content that is user-generated content in relation to a service is not to be regarded as provider content in relation to that service.

Services which enable combinations of user-generated content¶

5 A user-to-user service is exempt if the only user-generated content enabled by the service is content of the following kinds—

(a) content mentioned in paragraph 1, 2 or 3 and related identifying content;

(b) content arising in connection with any of the activities described in paragraph 4(1).

Exception to exemptions in paragraphs 1 to 5¶

6 But a a user-to-user service described in any of paragraphs 1 to 5⁵ is not exempt if—

(a) regulated provider pornographic content is published or displayed on the service, and

(b) the service has links with the United Kingdom within the meaning of section 67(4).

Internal business services (entire user-to-user service or search service)¶

(1) A user-to-user service or a search service is exempt if the conditions in sub- paragraph (2) are met in relation to the service.

(2) The conditions are—

(a) the user-to-user service or search service is an internal resource or tool for a business, or for more than one business carried on by the same person,

(b) the person carrying on the business (or businesses) (“P”) is the provider of the user-to-user service or search service, and

(c) the user-to-user service or search service is available only to a closed group of people comprising some or all of the following—

(i) where P is an individual or individuals, that individual or those individuals,

(ii) where P is an entity, officers of P,

(iii) persons who work for P (including as employees or volunteers) for the purposes of any activities of the business (or any of the businesses) in question, and

(iv) any other persons authorised by a person within sub- paragraph (i), (ii) or (iii) to use the service for the purposes of any activities of the business (or any of the businesses) in question (for example, a contractor, consultant or auditor, or in the case of an educational institution, pupils or students).

(3) In this paragraph—

“business” includes trade, profession, educational institution or other concern (whether or not carried on for profit);

“officer” includes a director, manager, partner, associate, secretary, governor, trustee or other similar officer.

Internal business services (part of user-to-user service or search service)¶

(1) A user-to-user service is exempt if—

(a) the conditions in paragraph 7(2) are met in relation to a part of the service,

(b) no user-generated content is enabled by the rest of the service, and

(2) A user-to-user service is also exempt if—

(a) the conditions in paragraph 7(2) are met in relation to a part of the service,

(b) the only user-generated content enabled by the rest of the service is—

(i) content mentioned in paragraph 1, 2 or 3 and related identifying content, or

(ii) content arising in connection with any of the activities described in paragraph 4(1), and

(3) A search service is exempt if—

(a) the conditions in paragraph 7(2) are met in relation to a part of the service that is a search engine,

(b) the service does not include a public search engine, and

(4) In this paragraph—

“public search engine” means a search engine other than one in relation to which the conditions in paragraph 7(2) are met;

“the rest of the service” means all parts of the user-to-user service or search service other than the part in relation to which the conditions in paragraph 7(2) are met.

Services provided by public bodies¶

(1) A user-to-user service or a search service is exempt if—

(a) both of the following conditions are met in relation to the service—

(i) the provider of the service is a public authority within the meaning of section 6 of the Human Rights Act 1998, and

(ii) the service is provided in the exercise of public functions only,

(b) the provider of the service is Parliament, either House of Parliament, the Scottish Parliament, Senedd Cymru, the Northern Ireland Assembly or a person acting on behalf of any of those institutions,

(d) both of the following conditions are met in relation to the service—

(i) the provider of the service is an entity formed under the law of a country outside the United Kingdom, which exercises functions of a public nature, and

(ii) the service is provided in the exercise of such functions only.

(2) But a user-to-user service or a search service is not exempt under this paragraph if—

(a) the provider of the service is a person providing education or childcare, and

(b) the service is provided for the purposes of that education or childcare.

See paragraph 10 for an exemption for services provided by persons providing education or childcare of particular descriptions.

(3) This paragraph is without prejudice to the fact that this Act does not apply in relation to a user-to-user or search service provided by the Crown.

(4) In this paragraph, “public function” means a function that is a function of a public nature for the purposes of the Human Rights Act 1998.

Services provided by persons providing education or childcare¶

(1) A user-to-user service or a search service is exempt if—

(a) the provider of the service is—

(i) the person with legal responsibility for education or childcare of a description listed in Part 2 (“the responsible person”), or where the responsible person is a body, a member of that body, or

(ii) a person who is employed or engaged to provide education or childcare of a description listed in Part 2, and who is subject to safeguarding duties which relate to the provision of that education or childcare, and

(b) the service is provided for the purposes of that education or childcare.

(2) In sub-paragraph (1)(a)(ii), “safeguarding duties” means duties or requirements which are related to the safeguarding of children arising under enactments other than this Act, under guidance or requirements (however referred to) produced under enactments other than this Act, or as a result of contractual arrangements made by the responsible person.

(3) For the purposes of this paragraph, the person with legal responsibility for education or childcare of a particular description is the person with legal responsibility for its day-to-day provision (for example, the person with legal responsibility for a particular school), rather than any other person who has a duty to ensure that, in general, education or childcare of that description (or education or childcare which includes education or childcare of that description) is provided.

Interpretation¶

11 In Part 1 of this Schedule—

“enactment” includes—

(a) an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978),

(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament,

(d) an enactment contained in, or in an instrument made under, Northern Ireland legislation;

“regulated provider pornographic content” and “published or displayed” have the same meaning as in Part 5 (see section 66);

“user-generated content” has the meaning given by section 49 (see subsections (3) and (4) of that section).

Part 2 Paragraph 10 exemption: descriptions of education and childcare¶

England¶

12 Early years childminding by an early years childminder registered under Chapter 2 of Part 3 of the Childcare Act 2006.

13 Early years provision by a person registered under Chapter 2 of Part 3 of that Act.

14 Later years childminding by a later years childminder registered under Chapter 3 of Part 3 of that Act.

15 Later years provision by a person registered under Chapter 3 of Part 3 of that Act.

16 Education or childcare in a maintained nursery school within the meaning of section 22 of the School Standards and Framework Act 1998.

17 Education or childcare in—

(a) an Academy school, within the meaning of section 1A of the Academies Act 2010;

(b) an alternate provision Academy, within the meaning of section 1C of that Act;

(c) a maintained school, within the meaning of the School Standards and Framework Act 1998 (see section 20(7) of that Act);

(d) a non-maintained special school, being a school that is approved under section 342 of the Education Act 1996;

(e) an independent educational institution registered on the register maintained under section 95 of the Education and Skills Act 2008;

(f) a pupil referral unit, within the meaning of section 19 of the Education Act 1996.

18 Education in—

(a) an institution in England within the further education sector, within the meaning of the Further and Higher Education Act 1992 (see section 91(3) of that Act);

(b) a 16 to 19 Academy, within the meaning of section 1B of the Academies Act 2010;

(c) a special post-16 institution, within the meaning of Part 3 of the Children and Families Act 2014 (see section 83(2) of that Act).

19 Education provided by an independent training provider.

20 Further education for persons under 19 provided by a local authority in England.

21 In paragraphs 12 to 15⁴, “early years childminding”, “early years provision”, “later years childminding” and “later years provision” have the same meaning as in Part 3 of the Childcare Act 2006 (see section 98 of that Act).

22 In paragraph 19, “independent training provider” means a provider—

(a) that is a provider of post-16 education or training carried on, or partly carried on, in England—

(i) to which Chapter 3 of Part 8 of the Education and Inspections Act 2006 (inspection of further education and training etc) applies, and

(ii) which is funded, wholly or partly, by the Secretary of State, a local authority in England or a combined authority, but

(b) that is not—

(i) an employer who only provides such education or training to its employees,

(ii) a 16 to 19 Academy (within the meaning of section 1B of the Academies Act 2010),

(iii) a school,

(iv) a local authority in England,

(v) an institution within the further education sector (within the meaning given by section 91(3) of the Further and Higher Education Act 1992), or

(vi) a higher education provider (within the meaning given by section 83(1) of the Higher Education and Research Act 2017).

23 In paragraphs 20 and 22, “local authority in England” has the same meaning as in the Education Act 1996 (see sections 579(1) and 581 of that Act).

24 In paragraph 22—

“combined authority” means a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;

“school” has the meaning given by section 4(1) of the Education Act 1996.

Scotland¶

25 Early learning and childcare, within the meaning of Part 6 of the Children and Young People (Scotland) Act 2014 (asp 8) (see section 46 of that Act).

26 Child minding, within the meaning of Part 5 of the Public Services Reform (Scotland) Act 2010 (asp 8) (see paragraph 12 of Schedule 12 to that Act).

27 Day care of children, within the meaning of Part 5 of that Act (see paragraph 13 of Schedule 12 to that Act).

28 Primary education, secondary education or childcare in—

(a) a school, or

(b) a hostel used mainly by pupils attending a school;

and in this paragraph “school” has the same meaning as in the Education (Scotland) Act 1980 (see section 135(1) of that Act).

29 Further education provided by a body listed under the heading “Institutions formerly eligible for funding by the Scottish Further Education Funding Council” or under the heading “Other institutions” in Schedule 2 to the Further and Higher Education (Scotland) Act 2005 (asp 6).

30 Further education provided by a college of further education which is assigned to a regional strategic body by an order made under section 7C(1) of that Act.

Wales¶

31 Child minding by a person who is registered as a child minder under Part 2 of the Children and Families (Wales) Measure 2010 (nawm 1).

32 Day care for children by a person who is registered to provide day care for children under Part 2 of that Measure.

33 Primary education, secondary education or childcare in a school in Wales, within the meaning of the Education Act 1996 as it applies in relation to Wales (see section 4 of that Act).

34 Education provided in accordance with section 19A of the Education Act 1996.

35 Further education in an institution in Wales within the further education sector, within the meaning of the Further and Higher Education Act 1992 (see section 91(3) of that Act).

36 Any other post-16 education or training in Wales, the facilities for which are secured under section 31(1)(a) or (b) or 32(1)(a) or (b) of the Learning and Skills Act 2000, that is funded by the Welsh Ministers or a local authority in Wales (within the meaning of section 579(1) of the Education Act 1996), but that is not provided by—

(a) an institution in Wales within the higher education sector, within the meaning of the Further and Higher Education Act 1992 (see section 91(5) of that Act), or

(b) a person who is a provider of such post-16 education or training only by reason of providing such education or training to the person’s employees.

37 In paragraphs 31 and 32, “child minding” and “day care for children” have the same meaning as in Part 2 of the Children and Families (Wales) Measure 2010 (see section 19 of that Measure).

Northern Ireland¶

38 Childcare by persons who act as child minders or provide day care for children within the meaning of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), and who are registered under Article 118 of that Order.

39 Pre-school education, within the meaning of Part 5 of the Education (Northern Ireland) Order 1998 (S.I. 1998/1759 (N.I. 13)) (see Article 17(8) of that Order).

40 Education in a nursery school, within the meaning of the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3)) (see Article 2(2) of that Order).

41 Education or childcare in a school, within the meaning of the Education and Libraries (Northern Ireland) Order 1986 (see Article 2(2) of that Order).

42 Education which is suitable education otherwise than at school provided in accordance with Article 86 of the Education (Northern Ireland) Order 1998.

43 Education in an institution of further education, within the meaning of the Further Education (Northern Ireland) Order 1997 (S.I. 1997/1772 (N.I. 15)) (see Article 2(2) of that Order).

44 Education in agriculture and related subjects.

Part 3 Interpretation¶

45 The following definitions apply for the purposes of this Schedule.

46 “Childcare”—

(a) in relation to provision in England, has same meaning as in the Childcare Act 2006 (see section 18 of that Act);

(b) in relation to provision in Scotland, means early learning and childcare within the meaning of Part 6 of the Children and Young People (Scotland) Act 2014 (see section 46 of that Act), and any form of care provided outside school hours or during school holidays to children who are in attendance at an educational establishment (and in this paragraph, “educational establishment” has the same meaning as in the Education (Scotland) Act 1980 (see section 135(1) of that Act));

(c) in relation to provision in Wales, means anything that amounts to child minding or day care for children for the purposes of Part 2 of the Children and Families (Wales) Measure 2010 (see section 19(2) to (4)^… of that Measure), and any form of care provided by a school outside school hours or during school holidays (and in this paragraph “school” has the same meaning as in the Education Act 1996 as it applies in relation to Wales (see section 4 of that Act));

(d) in relation to provision in Northern Ireland, means anything that amounts to child minding or day care for the purposes of Part 11 of the Children (Northern Ireland) Order 1995, and any form of care provided by a school outside school hours or during school holidays (and in this paragraph “school” has the same meaning as in the Education and Libraries (Northern Ireland) Order (see Article 2(2) of that Order)).

47 “Education”—

(a) in relation to provision in England, Wales and Scotland, means primary education, secondary education, further education or higher education;

(b) in relation to provision in Northern Ireland, means primary education, secondary education, further education, higher education or education in agriculture and related subjects.

48 “Education in agriculture and related subjects”, in relation to provision in Northern Ireland, means education consisting of instruction in agriculture and related subjects provided by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland under section 5(2)(a) of the Agriculture Act (Northern Ireland) 1949 (c. 2 (N.I.)), but not where the instruction is provided only to the Department’s employees.

49 “Further education”—

(a) in relation to provision in England and Wales, has the same meaning as in the Education Act 1996 (see section 2 of that Act);

(b) in relation to provision in Scotland, has the same meaning as in Part 1 of the Further and Higher Education (Scotland) Act 1992 (see sections 1(3) and 6 of that Act);

(c) in relation to provision in Northern Ireland, has the same meaning as in the Further Education (Northern Ireland) Order 1997 (see Article 3 of that Order).

50 “Higher education”—

(a) in relation to provision in England and Wales, has the same meaning as in the Education Act 1996 (see section 579(1) of that Act);

(b) in relation to provision in Scotland, has the same meaning as in Part 2 of the Further and Higher Education (Scotland) Act 1992 (see section 38 of that Act);

(i) “higher education” within the meaning of the Further Education (Northern Ireland) Order 1997 (see Article 2(2) of that Order), and

(ii) any other education provided by a higher education institution within the meaning of the Education and Libraries (Northern Ireland) Order 1993 (S.I. 1993/2810 (N.I. 12)) (see Article 30 of that Order).

51 “Primary education” and “secondary education”—

(a) in relation to provision in England and Wales, have the same meaning as in the Education Act 1996 (see section 2 of that Act);

(b) in relation to provision in Scotland, have the same meaning as in the Education (Scotland) Act 1980 (see section 135(2) of that Act);

(c) in relation to provision in Northern Ireland, have the same meaning as in the Education and Libraries (Northern Ireland) Order 1986 (see Article 2(2) of that Order).

Schedule 2 User-to-user services and search services that include regulated provider pornographic content¶

Section 3

1 A user-to-user service described in any of paragraphs 1 to 5⁵ of Schedule 1—

(a) on which regulated provider pornographic content is published or displayed, and

(b) that has links with the United Kingdom.

(1) A user-to-user service within sub-paragraph (2) or (3).

(2) A user-to-user service is within this sub-paragraph if—

(a) the internal business service conditions are met in relation to a part of the service,

(b) no user-generated content is enabled by the rest of the service,

(d) the service has links with the United Kingdom.

(3) A user-to-user service is within this sub-paragraph if—

(a) the internal business service conditions are met in relation to a part of the service,

(b) the only user-generated content enabled by the rest of the service is—

(i) content mentioned in paragraph 1, 2 or 3 of Schedule 1 and related identifying content, or

(ii) content arising in connection with any of the activities described in paragraph 4(1) of Schedule 1,

(d) the service has links with the United Kingdom.

(1) A search service within sub-paragraph (2).

(2) A search service is within this sub-paragraph if—

(a) the internal business service conditions are met in relation to a part of the service that is a search engine,

(b) the service does not include a public search engine,

(d) the service has links with the United Kingdom.

4 For the purposes of this Schedule, a service “has links with the United Kingdom” if it has links with the United Kingdom within the meaning of section 67(4).

5 In this Schedule—

“the internal business service conditions” means the conditions in paragraph 7(2) of Schedule 1;

“public search engine” means a search engine other than one in relation to which the internal business service conditions are met;

“regulated provider pornographic content” and “published or displayed” have the same meaning as in Part 5 (see section 66);

“the rest of the service” means any part of the user-to-user service or search service other than the part in relation to which the internal business service conditions are met;

“user-generated content” has the meaning given by section 49 (see subsections (3) and (4) of that section).

Schedule 3 Timing of providers’ assessments¶

Sections 8, 10, 12, 23, 25 and 32

Part 1 Timing of illegal content risk assessments and children’s access assessments¶

Part 3 services already in operation at the outset of the regime provided for by this Act¶

(1) This paragraph applies in relation to a Part 3 service which is in operation immediately before the day on which the first illegal content risk assessment guidance is published.

(2) The first illegal content risk assessment of the service must be completed within the period of three months beginning with the day on which that guidance is published.

(3) The first CAA of the service must be completed within the period of three months beginning with the day on which the first CAA guidance is published.

New Part 3 services which start up, and existing services which become Part 3 services, between publication of the first illegal content risk assessment guidance and the first CAA guidance¶

(1) In this paragraph “the first day”, in relation to a Part 3 service, means—

(a) the first day on which the service is a Part 3 service (being a new service), or

(b) the first day on which the service becomes a Part 3 service (having previously not been a Part 3 service).

(2) Sub-paragraphs (3) and (4) apply if, on the first day, illegal content risk assessment guidance is available but the first CAA guidance has not yet been published.

(3) The first illegal content risk assessment of the service must be completed within the period of three months beginning with the first day.

(4) The first CAA of the service must be completed within the period of three months beginning with the day on which the first CAA guidance is published.

New Part 3 services which start up when illegal content risk assessment guidance and CAA guidance are both available¶

(1) In this paragraph “the first day”, in relation to a Part 3 service, means the first day on which the service is a Part 3 service (being a new service).

(2) If, on the first day, illegal content risk assessment guidance and CAA guidance are both available, both of the following must be completed within the period of three months beginning with that day—

(a) the first illegal content risk assessment of the service, and

(b) the first CAA of the service.

Existing services which become Part 3 services when illegal content risk assessment guidance and CAA guidance are both available¶

(1) In this paragraph “the first day”, in relation to a Part 3 service, means the first day on which the service becomes, or again becomes, a Part 3 service (following a period during which the service was not a Part 3 service).

(a) an illegal content risk assessment of the service, and

(b) a CAA of the service.

Part 2 Timing of children’s risk assessments and adults’ risk assessments¶

Children’s risk assessments¶

(1) In this paragraph “the relevant day”, in relation to a Part 3 service, means—

(a) the first day on which the service is treated as likely to be accessed by children, or

(b) the first day on which the service is again treated as likely to be accessed by children (following a period during which the service was not so treated).

(2) If, on the relevant day, children’s risk assessment guidance is available, a children’s risk assessment of the service must be completed within the period of three months beginning with that day.

(3) Sub-paragraph (4) applies if—

(a) on the relevant day, the first children’s risk assessment guidance has not yet been published, and

(b) immediately before the publication of that guidance, the service is still treated as likely to be accessed by children.

(4) The first children’s risk assessment of the service must be completed within the period of three months beginning with the day on which the first children’s risk assessment guidance is published.

Adults’ risk assessments¶

(1) In this paragraph “the relevant day”, in relation to a regulated user-to-user service, means—

(a) the first day on which the service is a Category 1 service, or

(b) the first day on which the service again becomes a Category 1 service (following a period during which the service was not a Category 1 service).

(2) If, on the relevant day, adults’ risk assessment guidance is available, an adults’ risk assessment of the service must be completed within the period of three months beginning with that day.

(3) Sub-paragraph (4) applies if—

(a) on the relevant day, the first adults’ risk assessment guidance has not yet been published, and

(b) immediately before the publication of that guidance, the service is still a Category 1 service.

(4) The first adults’ risk assessment of the service must be completed within the period of three months beginning with the day on which the first adults’ risk assessment guidance is published.

Part 3 Interpretation, and extension of three-month periods¶

Interpretation of this Schedule¶

7 In this Schedule—

“adults’ risk assessment guidance” means OFCOM’s guidance under section 84(3);

“CAA” means a children’s access assessment (see section 31);

“CAA guidance” means OFCOM’s guidance under section 48(1)(b) (guidance about children’s access assessments);

“children’s risk assessment guidance” means OFCOM’s guidance under section 84(2);

“illegal content risk assessment guidance” means OFCOM’s guidance under section 84(1).

8 For the meaning of “likely to be accessed by children”, see section 33.

9 In relation to regulated user-to-user services (or in the case of combined services, the user-to-user part of such services)—

(a) references to an illegal content risk assessment are to an illegal content risk assessment as defined by section 8;

(b) references to illegal content risk assessment guidance are to be read as references to guidance about such illegal content risk assessments.

10 In relation to regulated search services and the search engine of combined services—

(a) references to an illegal content risk assessment are to an illegal content risk assessment as defined by section 23;

(b) references to illegal content risk assessment guidance are to be read as references to guidance about such illegal content risk assessments.

11 In relation to regulated user-to-user services (or in the case of combined services, the user-to-user part of such services)—

(a) references to a children’s risk assessment are to a children’s risk assessment as defined by section 10;

(b) references to children’s risk assessment guidance are to be read as references to guidance about such children’s risk assessments.

12 In relation to regulated search services and the search engine of combined services—

(a) references to a children’s risk assessment are to a children’s risk assessment as defined by section 25;

(b) references to children’s risk assessment guidance are to be read as references to guidance about such children’s risk assessments.

13 For the purposes of this Schedule, guidance of a particular kind is available at a particular time if at that time there is in existence published guidance of that kind.

Extension of three-month periods¶

(1) This paragraph applies in relation to a time-limit of three months imposed by any provision of this Schedule for completing a CAA or a particular kind of risk assessment.

(2) Extra time may be allowed—

(a) by agreement between OFCOM and the provider of a particular Part 3 service, or

(b) in accordance with a notice published by OFCOM specifying a longer period for CAAs or risk assessments of that kind (as the case may be) which relate to Part 3 services of a particular kind or size.

Schedule 4 Codes of practice under section 37: principles, objectives, content¶

Section 38

General principles ¶

1 In preparing a draft of a code of practice or amendments of a code of practice, OFCOM must—

(a) consider the appropriateness of provisions of the code of practice to different kinds and sizes of Part 3 services and to providers of differing sizes and capacities, and

(b) have regard to the principles mentioned in paragraph 2.

2 The principles are as follows—

(a) providers of Part 3 services must be able to understand which provisions of the code of practice apply in relation to a particular service they provide;

(b) the measures described in the code of practice must be sufficiently clear, and at a sufficiently detailed level, that providers understand what those measures entail in practice;

(c) the measures described in the code of practice must be proportionate and technically feasible: measures that are proportionate or technically feasible for providers of a certain size or capacity, or for services of a certain kind or size, may not be proportionate or technically feasible for providers of a different size or capacity or for services of a different kind or size;

(d) the measures described in the code of practice that apply in relation to Part 3 services of various kinds and sizes must be proportionate to OFCOM’s assessment (under section 83) of the risk of harm presented by services of that kind or size.

Online safety objectives¶

3 OFCOM must ensure that measures described in codes of practice are compatible with pursuit of the online safety objectives.

4 The online safety objectives for regulated user-to-user services are as follows—

(a) a service should be designed and operated in such a way that—

(i) the systems and processes for regulatory compliance and risk management are effective and proportionate to the kind and size of service,

(ii) the systems and processes are appropriate to deal with the number of users of the service and its user base,

(iii) United Kingdom users (including children) are made aware of, and can understand, the terms of service,

(iv) there are adequate systems and processes to support United Kingdom users,

(v) (in the case of a Category 1 service) users are offered options to increase their control over the content they encounter and the users they interact with,

(vi) the service provides a higher standard of protection for children than for adults,

(vii) the different needs of children at different ages are taken into account,

(viii) there are adequate controls over access to the service by adults, and

(ix) there are adequate controls over access to, and use of, the service by children, taking into account use of the service by, and impact on, children in different age groups;

(b) a service should be designed and operated so as to protect individuals in the United Kingdom who are users of the service from harm, including with regard to—

(i) algorithms used by the service,

(ii) functionalities of the service, and

(iii) other features relating to the operation of the service.

5 The online safety objectives for regulated search services are as follows—

(a) a service should be designed and operated in such a way that—

(i) the systems and processes for regulatory compliance and risk management are effective and proportionate to the kind and size of service,

(ii) the systems and processes are appropriate to deal with the number of users of the service and its user base,

(iii) United Kingdom users (including children) are made aware of, and can understand, the publicly available statement referred to in sections 24 and 26,

(iv) there are adequate systems and processes to support United Kingdom users,

(v) the service provides a higher standard of protection for children than for adults, and

(vi) the different needs of children at different ages are taken into account;

(b) a service should be assessed to understand its use by, and impact on, children in different age groups;

(c) a search engine should be designed and operated so as to protect individuals in the United Kingdom who are users of the service from harm, including with regard to—

(i) algorithms used by the search engine,

(ii) functionalities relating to searches (such as a predictive search functionality), and

(iii) the indexing, organisation and presentation of search results.

6 In the case of a combined service—

(a) the online safety objectives set out in paragraph 4 do not apply in relation to the search engine;

(b) the online safety objectives set out in paragraph 5 apply in relation to the search engine, and accordingly references in that paragraph to a search service are to be read as references to the search engine;

(c) the reference in paragraph 5(a)(iii) to a publicly available statement includes a reference to provisions of the terms of service which relate to the search engine.

7 The Secretary of State may by regulations amend paragraph 4 or 5 so as to vary the online safety objectives for regulated user-to-user services or regulated search services, and such regulations may make consequential amendments of paragraph 6.

8 If regulations are made amending the online safety objectives, OFCOM must, as soon as reasonably practicable after the regulations come into force, consider whether a review of the codes of practice published under section 42 is required and, if OFCOM consider that it is required, carry out a review to assess whether any amendments are needed to reflect the revised objectives.

Content of codes of practice¶

(1) Codes of practice that describe measures recommended for the purpose of compliance with a duty set out in section 9(2) or (3) (illegal content) must include measures in each of the areas of a service listed in section 9(4).

(2) Codes of practice that describe measures recommended for the purpose of compliance with a duty set out in section 11(2) or (3) (children’s online safety) must include measures in each of the areas of a service listed in section 11(4).

(3) Codes of practice that describe measures recommended for the purpose of compliance with a duty set out in section 24(2) or (3) (illegal content) must include measures in each of the areas of a service listed in section 24(4).

(4) Codes of practice that describe measures recommended for the purpose of compliance with a duty set out in section 26(2) or (3) (children’s online safety) must include measures in each of the areas of a service listed in section 26(4).

(5) Sub-paragraphs (1) to (4)⁴ apply to the extent that inclusion of the measures in question is consistent with paragraph 1(a) and the principles mentioned in paragraph 2(c) and (d).

(1) Measures described in a code of practice which are recommended for the purpose of compliance with any of the relevant duties must be designed in the light of the principles mentioned in sub-paragraph (2) and (where appropriate) incorporate safeguards for the protection of the matters mentioned in those principles.

(2) The principles are—

(a) the importance of protecting the right of users and (in the case of search services or combined services) interested persons to freedom of expression within the law, and

(b) the importance of protecting the privacy of users.

(3) In sub-paragraph (2)(b) the reference to protecting the privacy of users is to protecting users from a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of a user-to-user service or a search service (including, but not limited to, any such provision or rule concerning the processing of personal data).

(4) In this paragraph “the relevant duties” means the duties set out in—

(a) sections 9 and 24 (illegal content),

(b) sections 11 and 26 (children’s online safety),

(d) section 14 (user empowerment),

(e) section 15 (content of democratic importance),

(f) section 16 (journalistic content),

(g) sections 17 and 27 (content reporting),

(h) sections 18 and 28 (complaints procedures), and

(i) sections 34 and 35 (fraudulent advertising).

11 Measures described in a code of practice may relate only to the design or operation of a Part 3 service—

(a) in the United Kingdom, or

(b) as it affects United Kingdom users of the service.

Content of codes of practice: proactive technology¶

(1) If OFCOM consider it appropriate to do so, and in accordance with the principles to which they must have regard (see paragraphs 1 and 2 and, in particular, 10(2)), they may include in a code of practice a measure describing the use of a kind of technology.

(2) But there are constraints, set out in the rest of this paragraph, on OFCOM’s power to include in a code of practice a measure describing the use of proactive technology as a way (or one of the ways) of complying with a duty set out in this Act (a “proactive technology measure”).

(3) A proactive technology measure may be recommended only for the purpose of compliance with any of the duties set out in—

(a) section 9(2) or (3) (illegal content),

(b) section 11(2) or (3) (children’s online safety),

(d) section 26(2) or (3) (children’s online safety), or

(e) section 34(1) or 35(1) (fraudulent advertising).

(4) A proactive technology measure may relate to the use of a kind of technology on or in relation to any Part 3 service or any part of such a service, but if the technology operates (or may operate) by analysing user- generated content or metadata relating to such content, the measure may not recommend the use of the technology to analyse user-generated content communicated privately, or metadata relating to user-generated content communicated privately.

(5) A proactive technology measure may be included in a code of practice in relation to Part 3 services of a particular kind or size only if OFCOM are satisfied that use of the technology in question by such services would be proportionate to the risk of harm that the measure is designed to safeguard against (taking into account, in particular, the risk profile for the time being published by OFCOM under section 83 relating to such services).

(6) In deciding whether to include a proactive technology measure in a code of practice, OFCOM must have regard to the degree of accuracy, effectiveness and lack of bias achieved by the technology in question, and may—

(a) refer in the code of practice to existing industry or technical standards for the technology (where they exist);

(b) set out principles in the code of practice designed to ensure that the technology or its use is (so far as possible) accurate, effective and free of bias.

General¶

13 A code of practice may make different provision for different purposes and may, in particular—

(a) make different provision with regard to—

(i) user-to-user services, and

(ii) search services;

(b) make different provision with regard to user-to-user services of different kinds or search services of different kinds; and

(c) otherwise differentiate between Part 3 services, and between providers of such services, in such manner as OFCOM consider appropriate.

14 A code of practice may apply in relation to a person who provides a Part 3 service from outside the United Kingdom.

Interpretation¶

15 In this Schedule—

“code of practice” means a code of practice under section 37;

“search results” has the meaning given by section 51(3);

“user-generated content” has the meaning given by section 49 (see subsections (3) and (4) of that section).

Schedule 5 Terrorism offences¶

Section 52

1 An offence under any of the following provisions of the Terrorism Act 2000—

(a) section 11 (membership of a proscribed organisation);

(b) section 12(1) (inviting support for a proscribed organisation);

(d) section 12(2) (arranging a meeting supportive of a proscribed organisation);

(e) section 13(1A) (publishing image of uniform of proscribed organisation);

(f) section 15 (terrorist fund-raising);

(g) section 16(1) (use of money or property for terrorist purposes);

(h) section 16(2) (possession of money or property for terrorist purposes);

(i) section 17 (involvement in terrorist funding arrangements);

(j) section 18 (laundering of terrorist property);

(k) section 54(1) (providing weapons training);

(l) section 54(3) (inviting another to receive weapons training);

(m) section 56 (directing a terrorist organisation);

(n) section 58 (collection of information likely to be of use to a terrorist);

(o) section 58A (publishing information about members of the armed forces etc);

(p) sections 59 to 61^… (inciting terrorism outside the United Kingdom).

2 An offence under section 113 of the Anti-terrorism, Crime and Security Act 2001 (use of noxious substances or things).

3 An offence under any of the following provisions of the Terrorism Act 2006—

(a) section 1 (encouragement of terrorism);

(b) section 2 (dissemination of terrorist publications);

(d) section 6 (training for terrorism);

(e) section 11 (terrorist threats relating to radioactive devices etc).

Inchoate offences¶

(1) An offence of attempting or conspiring to commit an offence specified in this Schedule.

(2) An offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) in relation to an offence specified in this Schedule, or (in Scotland) inciting a person to commit such an offence.

(3) An offence of aiding, abetting, counselling or procuring the commission of an offence specified in this Schedule, or (in Scotland) being involved art and part in the commission of such an offence.

Schedule 6 Child sexual exploitation and abuse offences¶

Section 52

Part 1 England and Wales, and Northern Ireland¶

1 An offence under section 2 of the Obscene Publications Act 1959 relating to an obscene article tending to deprave and corrupt others by encouraging them to commit an offence specified in paragraph 2, 4, 5, 7 or 8.

2 An offence under section 1 of the Protection of Children Act 1978 (indecent photographs of children).

3 An offence under Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (indecent photographs of children).

4 An offence under section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of a child).

5 An offence under any of the following provisions of the Sexual Offences Act 2003—

(a) section 8 (causing or inciting a child under 13 to engage in sexual activity);

(b) section 10 (causing or inciting a child to engage in sexual activity);

(d) section 12 (causing a child to watch a sexual act);

(e) section 13 (child sex offences committed by children or young persons);

(f) section 14 (arranging or facilitating commission of a child sex offence);

(g) section 15 (meeting a child following sexual grooming etc);

(h) section 15A (sexual communication with a child);

(i) section 47 (paying for sexual services of a child);

(j) section 48 (causing or inciting sexual exploitation of a child);

(k) section 49 (controlling a child in relation to sexual exploitation);

(l) section 50 (arranging or facilitating sexual exploitation of a child).

6 An offence under any of the following provisions of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2))—

(a) Article 15 (causing or inciting a child under 13 to engage in sexual activity);

(b) Article 17 (causing or inciting a child to engage in sexual activity);

(d) Article 19 (causing a child to watch a sexual act);

(e) Article 20 (sexual offences against children committed by children or young persons);

(f) Article 21 (arranging or facilitating commission of a sex offence against a child);

(g) Article 22 (meeting a child following sexual grooming etc);

(h) Article 22A (sexual communication with a child);

(i) Article 37 (paying for sexual services of a child);

(j) Article 38 (causing or inciting child prostitution or pornography);

(k) Article 39 (controlling a child prostitute or a child involved in pornography);

(l) Article 40 (arranging or facilitating child prostitution or pornography).

7 An offence under section 62 of the Coroners and Justice Act 2009 (possession of prohibited image of a child).

8 An offence under section 69 of the Serious Crime Act 2015 (possession of paedophile manual).

Inchoate offences¶

(1) An offence of attempting or conspiring to commit an offence specified in this Part.

(2) An offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) in relation to an offence specified in this Part.

(3) An offence of aiding, abetting, counselling or procuring the commission of an offence specified in this Part.

Part 2 Scotland¶

10 An offence under either of the following provisions of the Civic Government (Scotland) Act 1982—

(a) section 52 (indecent photographs etc of children);

(b) section 52A (possession of indecent photographs of children).

11 An offence under any of the following provisions of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005—

(a) section 1 (meeting a child following certain preliminary contact);

(b) section 9 (paying for sexual services of a child);

(d) section 11 (controlling a child providing sexual services or involved in pornography);

(e) section 12 (arranging or facilitating provision by child of sexual services or child pornography).

12 An offence under any of the following provisions of the Sexual Offences (Scotland) Act 2009—

(a) section 21 (causing a young child to participate in a sexual activity);

(b) section 23 (causing a young child to look at a sexual image);

(d) section 31 (causing an older child to participate in a sexual activity);

(e) section 33 (causing an older child to look at a sexual image);

(f) section 34 (communicating indecently with an older child etc);

(g) section 54 (incitement to commit certain sexual acts outside Scotland).

Inchoate offences¶

(1) An offence of attempting or conspiring to commit an offence specified in this Part.

(2) An offence of inciting a person to commit an offence specified in this Part.

(3) An offence of aiding, abetting, counselling or procuring the commission of an offence specified in this Part, or being involved art and part in the commission of such an offence.

Schedule 7 Priority offences¶

Section 52

Assisting suicide¶

1 An offence under section 2 of the Suicide Act 1961 (assisting suicide etc).

Threats to kill¶

2 An offence under section 16 of the Offences against the Person Act 1861 (threats to kill).

Public order offences, harassment, stalking and fear or provocation of violence¶

3 An offence under any of the following provisions of the Public Order Act 1986—

(a) section 4 (fear or provocation of violence);

(b) section 4A (intentional harassment, alarm or distress);

4 An offence under any of the following provisions of the Public Order Act 1986—

(a) section 18 (use of words or behaviour or display of written material);

(b) section 19 (publishing or distributing written material);

(d) section 29B (use of words or behaviour or display of written material);

(e) section 29C (publishing or distributing written material);

(f) section 29E (distributing, showing or playing a recording).

5 An offence under any of the following provisions of the Protection from Harassment Act 1997—

(a) section 2 (harassment);

(b) section 2A (stalking);

(d) section 4A (stalking involving fear of violence or serious alarm or distress).

6 An offence under any of the following provisions of the Crime and Disorder Act 1998—

(a) section 31 (racially or religiously aggravated public order offences);

(b) section 32 (racially or religiously aggravated harassment etc).

Drugs and psychoactive substances¶

7 An offence under any of the following provisions of the Misuse of Drugs Act 1971—

(a) section 4(3) (unlawful supply, or offer to supply, of controlled drugs);

(b) section 9A (prohibition of supply etc of articles for administering or preparing controlled drugs);

8 An offence under section 5 of the Psychoactive Substances Act 2016 (supplying, or offering to supply, a psychoactive substance).

Firearms and other weapons¶

9 An offence under section 1(1) or (2) of the Restriction of Offensive Weapons Act 1959 (sale etc of flick knife etc).

10 An offence under any of the following provisions of the Firearms Act 1968—

(a) section 1(1) (purchase etc of firearms or ammunition without certificate);

(b) section 2(1) (purchase etc of shot gun without certificate);

(d) section 3(2) (sale etc of firearms or ammunition to person other than registered dealer);

(e) section 5(1), (1A) or (2A) (purchase, sale etc of prohibited weapons);

(f) section 21(5) (sale etc of firearms or ammunition to persons previously convicted of crime);

(g) section 22(1) (purchase etc of firearms or ammunition by person under 18);

(h) section 24 (supplying firearms to minors);

(i) section 24A (supplying imitation firearms to minors).

11 An offence under any of the following provisions of the Crossbows Act 1987—

(a) section 1 (sale and letting on hire of crossbow);

(b) section 2 (purchase and hiring of crossbow).

12 An offence under any of the following provisions of the Criminal Justice Act 1988—

(a) section 141(1) or (4) (sale etc of offensive weapons);

(b) section 141A (sale of knives etc to persons under 18).

13 An offence under any of the following provisions of the Knives Act 1997—

(a) section 1 (unlawful marketing of knives);

(b) section 2 (publication of material in connection with marketing of knives).

14 An offence under section 36(1)(c) or (d) of the Violent Crime Reduction Act 2006 (sale etc of realistic imitation firearms).

Assisting illegal immigration¶

15 An offence under section 25 of the Immigration Act 1971 (assisting unlawful immigration etc).

Sexual exploitation¶

16 An offence under any of the following provisions of the Sexual Offences Act 2003—

(a) section 52 (causing or inciting prostitution for gain);

(b) section 53 (controlling prostitution for gain).

Sexual images¶

17 An offence under section 63 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images).

18 An offence under section 33 of the Criminal Justice and Courts Act 2015 (disclosing, or threatening to disclose, private sexual photographs and films with intent to cause distress).

Proceeds of crime¶

19 An offence under any of the following provisions of the Proceeds of Crime Act 2002—

(a) section 327 (concealing etc criminal property);

(b) section 328 (arrangements facilitating acquisition etc of criminal property);

Fraud¶

20 An offence under any of the following provisions of the Fraud Act 2006—

(a) section 2 (fraud by false representation);

(b) section 4 (fraud by abuse of position);

(d) section 9 (participating in fraudulent business carried on by sole trader etc).

Financial services¶

21 An offence under any of the following provisions of the Financial Services and Markets Act 2000—

(a) section 23 (contravention of prohibition on carrying on regulated activity unless authorised or exempt);

(b) section 24 (false claims to be authorised or exempt);

22 An offence under any of the following provisions of the Financial Services Act 2012—

(a) section 89 (misleading statements);

(b) section 90 (misleading impressions).

Inchoate offences¶

(1) An offence of attempting or conspiring to commit an offence specified in this Schedule.

Schedule 8 Transparency reports by providers of Category 1 services, Category 2A services and Category 2B services¶

Section 64

Part 1 Matters about which information may be required: user-to-user part of service¶

1 The incidence of illegal content, content that is harmful to children and priority content that is harmful to adults on a service.

2 The dissemination of illegal content, content that is harmful to children and priority content that is harmful to adults by means of a service.

3 The number of users who are assumed to have encountered illegal content, content that is harmful to children or priority content that is harmful to adults by means of the service.

4 The application of the terms of service.

5 The systems and processes for users to report content which they consider to be illegal content, content that is harmful to children or content that is harmful to adults, or other content which they consider breaches the terms of service.

6 The systems and processes that a provider operates to deal with illegal content, content that is harmful to children and priority content that is harmful to adults, including systems and processes for identifying such content and taking it down.

7 Functionalities designed to help users manage risks relating to content that is harmful to children and priority content that is harmful to adults.

8 Measures taken or in use by a provider to comply with any duty set out in Chapter 2 or 4 of Part 3 or section 34 (including in particular measures that are described in a code of practice under section 37).

9 Measures taken or in use by a provider to comply with the duty set out in section 57(1) (user identity verification).

10 Arrangements that a provider has in place for the reporting (in the United Kingdom or elsewhere) of content relating to child sexual exploitation and abuse, and measures taken or in use by a provider to comply with a requirement under section 59.

11 The systems and processes by which a provider assesses the risk of harm to individuals from the presence of illegal content, content that is harmful to children or priority content that is harmful to adults—

(a) when the service is initially being designed or developed,

(b) when any further development or update to the service is being considered, and

12 The systems and processes that a provider operates—

(a) to direct users of the service to information about how they can protect themselves from harm in relation to illegal content, content that is harmful to children and priority content that is harmful to adults, and

(b) to counteract or provide support to users of the service in relation to illegal content, content that is harmful to children and priority content that is harmful to adults present on the service.

13 Co-operation by a provider with government, regulatory or other public sector bodies in the United Kingdom, in particular those involved in the enforcement of the criminal law.

14 Measures taken or in use by a provider to provide for a higher standard of protection for children than for adults.

15 Measures taken or in use by a provider to improve the media literacy of users, and an evaluation of the effectiveness of such measures.

16 Any other measures taken or in use by a provider which relate to online safety matters.

Part 2 Matters about which information may be required: search engine¶

17 The incidence of illegal search content and search content that is harmful to children on a service.

18 The number of users who are assumed to have encountered illegal search content or search content that is harmful to children.

19 The application of the statements of policies and procedures mentioned in sections 24(5) and 26(5).

20 The systems and processes for users to report search content which they consider to be illegal content or content that is harmful to children, or other content which they consider breaches any statements of policies and procedures which have been made publicly available by the provider of a service.

21 The systems and processes that a provider operates to deal with illegal search content and search content that is harmful to children, including systems and processes for identifying such content and minimising the risk of those kinds of content being encountered by means of the service.

22 Functionalities designed to help users manage risks relating to search content that is harmful to children.

23 Measures taken or in use by a provider to comply with any duty set out in Chapter 3 or 4 of Part 3 or section 35 (including in particular measures that are described in a code of practice under section 37).

24 Arrangements that a provider has in place for the reporting (in the United Kingdom or elsewhere) of content relating to child sexual exploitation and abuse, and measures taken or in use by a provider to comply with a requirement under section 59.

25 The systems and processes by which a provider assesses the risk of harm to individuals from illegal search content or search content that is harmful to children—

(a) when the service is initially being designed or developed,

(b) when any further development or update to the service is being considered, and

26 The systems and processes that a provider operates—

(a) to direct users of the service to information about how they can protect themselves from harm in relation to illegal content and content that is harmful to children, and

(b) to counteract or provide support to users of the service in relation to illegal search content and search content that is harmful to children.

27 Co-operation by a provider with government, regulatory or other public sector bodies in the United Kingdom, in particular those involved in the enforcement of the criminal law.

28 Measures taken or in use by a provider to provide a higher standard of protection for children than for adults.

29 Measures taken or in use by a provider to improve the media literacy of users, and an evaluation of the effectiveness of such measures.

30 Any other measures taken or in use by a provider which relate to online safety matters.

Part 3 Further provision and interpretation¶

31 When determining which information to require in a notice under section 64(1) in relation to a particular service, OFCOM must take into account—

(a) the kind of service it is;

(b) the functionalities of the service;

(d) the capacity of the provider;

(e) the duties set out in Chapter 2 or 3 of Part 3 that apply in relation to the service;

(f) the proportion of users of the service who are children.

32 The Secretary of State may by regulations—

(a) amend Part 1 or Part 2 of this Schedule so as to add further matters about which information may be required, or to vary or omit matters about which information may be required, and

(b) amend paragraph 31 in connection with any such amendment.

33 The Secretary of State must consult OFCOM before making regulations under paragraph 32.

34 In the application of Part 2 of this Schedule to a combined service, references to statements of policies and procedures include references to provisions of the terms of service which relate to the search engine.

35 In this Schedule—

“content that is harmful to adults” and “priority content that is harmful to adults” have the same meaning as in Part 3 (see section 54);

“content that is harmful to children” has the same meaning as in Part 3 (see section 53);

“illegal content” has the same meaning as in Part 3 (see section 52);

“illegal search content” means search content that is illegal content;

“search content” has the same meaning as in Part 3 (see section 51);

“users” means United Kingdom users (see section 181), except in paragraphs 12(a) and 26(a) where “users” means individuals in the United Kingdom who are users of a service.

Schedule 9 Certain internet services not subject to duties relating to regulated provider pornographic content¶

Section 67

Internal business services (entire internet service)¶

(1) An internet service, other than a user-to-user service or a search service, in relation to which the conditions in sub-paragraph (2) are met.

(2) The conditions are—

(a) the internet service is an internal resource or tool for a business, or for more than one business carried on by the same person,

(b) the person carrying on the business (or businesses) (“P”) is the provider of the internet service, and

(i) where P is an individual or individuals, that individual or those individuals,

(ii) where P is an entity, officers of P,

(iii) persons who work for P (including as employees or volunteers) for the purposes of any activities of the business (or any of the businesses) in question, and

(3) In this paragraph—

“business” includes trade, profession, educational institution or other concern (whether or not carried on for profit);

“officer” includes a director, manager, partner, associate, secretary, governor, trustee or other similar officer.

Internal business services (part of internet service)¶

(1) An internet service, other than a user-to-user service or a search service, within sub-paragraph (2).

(2) An internet service is within this sub-paragraph if—

(a) the conditions in paragraph 1(2) are met in relation to a part of the service, and

(b) no regulated provider pornographic content is published or displayed on the rest of the service.

(3) In sub-paragraph (2)(b), “the rest of the service” means all parts of the internet service other than the part in relation to which the conditions in paragraph 1(2) are met.

Services provided by public bodies¶

(1) An internet service, other than a user-to-user service or a search service, which is provided by a public body.

(2) An internet service is “provided by a public body” if—

(a) both of the following conditions are met in relation to the service—

(i) the provider of the service is a public authority within the meaning of section 6 of the Human Rights Act 1998, and

(ii) the service is provided in the exercise of public functions only,

(d) both of the following conditions are met in relation to the service—

(i) the provider of the service is an entity formed under the law of a country outside the United Kingdom, which exercises functions of a public nature, and

(ii) the service is provided in the exercise of such functions only.

(3) But an internet service is not within this paragraph if—

(a) the provider of the service is a person providing education or childcare, and

(b) the service is provided for the purposes of that education or childcare.

See paragraph 4.

(4) This paragraph is without prejudice to the fact that this Act does not apply in relation to an internet service provided by the Crown.

(5) In this paragraph, “public function” means a function that is a function of a public nature for the purposes of the Human Rights Act 1998.

Services provided by persons providing education or childcare¶

(1) An internet service, other than a user-to-user service or a search service—

(a) of which the provider is—

(i) the person with legal responsibility for education or childcare of a description listed in Part 2 of Schedule 1 (“the responsible person”), or where the responsible person is a body, a member of that body, or

(ii) a person who is employed or engaged to provide education or childcare of a description listed in Part 2 of Schedule 1, and who is subject to safeguarding duties which relate to the provision of that education or childcare, and

(b) which is provided for the purposes of that education or childcare.

On-demand programme services (entire internet service)¶

(1) An internet service that is an on-demand programme service.

(2) In this paragraph and paragraph 6, “on-demand programme service” has the same meaning as in the Communications Act (see section 368A of that Act).

On-demand programme services (part of internet service)¶

(1) An internet service within sub-paragraph (2).

(2) An internet service is within this sub-paragraph if—

(a) part of the service is an on-demand programme service, and

(b) no regulated provider pornographic content is published or displayed on the rest of the service.

(3) In sub-paragraph (2)(b), “the rest of the service” means all parts of the internet service other than the part which is an on-demand programme service.

Interpretation¶

7 In this Schedule—

“education” and “childcare” have the same meaning as in Schedule 1 (see Part 3 of that Schedule);

“enactment” includes—

(a) an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978),

(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament,

(d) an enactment contained in, or in an instrument made under, Northern Ireland legislation;

“regulated provider pornographic content” and “published or displayed” have the same meaning as in Part 5 (see section 66).

Schedule 10 Categories of regulated user-to-user services and regulated search services:¶

Section 80

REGULATIONS

Regulations specifying threshold conditions for categories of Part 3 services¶

(1) The Secretary of State must make regulations specifying conditions (“Category 1 threshold conditions”) for the user-to-user part of regulated user-to-user services relating to each of the following—

(a) number of users of the user-to-user part of the service, and

(b) functionalities of that part of the service.

(2) The Secretary of State must make regulations specifying conditions (“Category 2A threshold conditions”) for the search engine of regulated search services and combined services relating to each of the following—

(a) number of users of the search engine, and

(b) any other factors relating to the search engine that the Secretary of State considers relevant.

(3) The Secretary of State must make regulations specifying conditions (“Category 2B threshold conditions”) for the user-to-user part of regulated user-to-user services relating to each of the following—

(a) number of users of the user-to-user part of the service,

(b) functionalities of that part of the service, and

(4) Regulations under this paragraph must specify the way or ways in which the relevant threshold conditions may be met, and that may be by meeting the conditions in any specified combination, subject to the rule that—

(a) in relation to the Category 1 threshold conditions and the Category 2B threshold conditions, at least one specified condition about number of users and at least one specified condition about functionality must be met, and

(b) in relation to the Category 2A threshold conditions, at least one specified condition about number of users must be met.

(5) In making regulations under sub-paragraph (1), the Secretary of State must take into account the likely impact of the number of users of the user-to-user part of the service, and its functionalities, on the level of risk of harm to adults from priority content that is harmful to adults disseminated by means of the service.

(6) In making regulations under sub-paragraph (2), the Secretary of State must take into account the likely impact of the number of users of the search engine on the level of risk of harm to individuals from search content that is illegal content or search content that is harmful to children.

(7) In making regulations under sub-paragraph (3), the Secretary of State must take into account the likely impact of the number of users of the user-to-user part of the service, and its functionalities, on the level of risk of harm to individuals from illegal content, content that is harmful to children and priority content that is harmful to adults disseminated by means of the service.

(8) In this paragraph “specified” means specified in the regulations.

Procedure for first regulations under paragraph 1¶

(1) This paragraph describes the procedure that must be followed in relation to the making of the first regulations under each of sub-paragraphs (1), (2) and (3) of paragraph 1.

(2) In the case of regulations under paragraph 1(1), within the period of six months beginning with the day on which this Act is passed, OFCOM must carry out research into the relationship between—

(a) the dissemination of priority content that is harmful to adults by means of regulated user-to-user services, and

(b) the number of users and functionalities of the user-to-user part of such services.

(3) In the case of regulations under paragraph 1(2), within the period of six months beginning with the day on which this Act is passed, OFCOM must carry out research into the following aspects of the search engine of regulated search services and combined services—

(a) the prevalence of search content that is illegal content and search content that is harmful to children,

(b) the number of users of the search engine, and

(4) In the case of regulations under paragraph 1(3), within the period of six months beginning with the day on which this Act is passed, OFCOM must carry out research into—

(a) the dissemination of illegal content, content that is harmful to children and priority content that is harmful to adults by means of regulated user-to-user services,

(b) the number of users and functionalities of the user-to-user part of such services, and

(5) OFCOM must provide the Secretary of State with advice based on the research under sub-paragraph (2), (3) or (4) (as the case may be) as to the provision which OFCOM consider it is appropriate for the regulations in question to make.

(6) In the case of—

(a) regulations under paragraph 1(2), or

(b) regulations under paragraph 1(3),

such advice may include advice that the regulations should include another factor in addition to number of users and (in the case of regulations under paragraph 1(3)) functionalities, and what that other factor should be.

(7) As soon as reasonably practicable after OFCOM provide advice as mentioned in sub-paragraph (5)—

(a) OFCOM must publish the advice, and

(b) the Secretary of State must make the regulations.

(8) If the regulations include provision which differs in any material respect from provision advised by OFCOM, the Secretary of State must publish a statement which explains why the Secretary of State has departed from that advice.

(9) A statement mentioned in sub-paragraph (8) must be published—

(a) no later than the time at which the regulations to which the statement relates are made, and

(b) in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons who may be affected by it.

(10) The Secretary of State may give OFCOM extra time to carry out their research in the case of regulations under paragraph 1(2) or (3), but OFCOM must carry out such research within the period of 18 months beginning with the day on which this Act is passed.

(11) The Secretary of State may not make regulations under paragraph 1 until OFCOM have carried out research and provided advice to the Secretary of State as required by this paragraph.

Procedure for amending or replacing regulations under paragraph 1¶

(1) Regulations in force under paragraph 1(1) may not be amended or replaced by further regulations under that provision except following further research carried out by OFCOM into the matters mentioned in paragraph 2(2).

(2) Regulations in force under paragraph 1(2) may not be amended or replaced by further regulations under that provision except following further research carried out by OFCOM into the matters mentioned in paragraph 2(3).

(3) Regulations in force under paragraph 1(3) may not be amended or replaced by further regulations under that provision except following further research carried out by OFCOM into the matters mentioned in paragraph 2(4).

(4) The further research in question—

(a) may be initiated by OFCOM or carried out in response to a request from the Secretary of State, and

(b) may be in as much depth as OFCOM consider appropriate.

(5) A request from the Secretary of State to OFCOM to carry out further research must indicate why the Secretary of State considers that to be necessary.

(6) Where such research is carried out, OFCOM must provide the Secretary of State with advice as to whether, in OFCOM’s opinion—

(a) it is appropriate to make changes to the regulations in question, specifying the changes that OFCOM recommend, or

(b) it is not appropriate to make any changes to the regulations in question.

(7) OFCOM must publish such advice as soon as reasonably practicable after providing it to the Secretary of State.

(8) Where, following such advice, regulations are amended or replaced by further regulations under the provision in question (“new regulations”)—

(a) if the new regulations include provision which differs in any material respect from provision advised by OFCOM, the Secretary of State must publish a statement explaining the departures from that advice;

(b) if OFCOM’s advice was as mentioned in sub-paragraph (6)(b), the Secretary of State must publish a statement explaining the reasons for the new regulations.

(9) Where OFCOM’s advice is as mentioned in sub-paragraph (6)(a) and the Secretary of State does not make new regulations, the Secretary of State must, as soon as reasonably practicable, publish a statement explaining that decision.

(10) A statement mentioned in sub-paragraph (8) must be published no later than the time at which the regulations to which the statement relates are made.

(11) A statement mentioned in sub-paragraph (8) or (9) must be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons who may be affected by it.

(12) Sub-paragraphs (1) to (3)³ do not apply to regulations made only for the purpose of correcting existing regulations under paragraph 1.

Publication of OFCOM’s advice under paragraphs 2 and 3¶

(1) In arranging for the publication of advice under paragraph 2(7)(a) or 3(7), OFCOM must have regard to the need to exclude from publication, so far as that is practicable, matters which are confidential in accordance with sub- paragraphs (2) and (3).

(2) A matter is confidential under this sub-paragraph if—

(a) it relates specifically to the affairs of a particular body, and

(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(3) A matter is confidential under this sub-paragraph if—

(a) it relates to the private affairs of an individual, and

(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

Interpretation¶

5 References in this Schedule to the number of users of a user-to-user part of a service or a search engine are to the number of United Kingdom users of such a part or search engine.

6 In this Schedule—

“content that is harmful to children” has the same meaning as in Part 3 (see section 53);

“illegal content” has the same meaning as in Part 3 (see section 52);

“priority content that is harmful to adults” has the same meaning as in Part 3 (see section 54);

“search content” has the same meaning as in Part 3 (see section 51).

Schedule 11 OFCOM’s powers of entry, inspection and audit¶

Section 91

Authorised persons¶

(1) OFCOM may authorise persons to—

(a) exercise powers of entry and inspection under paragraph 2;

(b) carry out audits in accordance with notices under paragraph 4;

(2) “Authorised person” means—

(a) in paragraph 2, a person authorised for the purposes mentioned in sub-paragraph (1)(a);

(b) in paragraph 4, a person authorised for the purposes mentioned in sub-paragraph (1)(b);

(3) An authorisation under this paragraph must be in writing.

Power of entry and inspection without a warrant¶

(1) The powers conferred by this paragraph may be exercised in relation to premises only if OFCOM—

(a) believe that the premises are being used by the provider of a regulated service in connection with the provision of a regulated service, and

(b) have given the occupier of the premises seven days’ notice that they propose to exercise the powers.

(2) The powers conferred by this paragraph must be exercised at a reasonable hour.

(3) Before exercising a power of entry under this paragraph, an authorised person must, if requested to do so by a person on the premises—

(a) produce evidence of the authorised person’s identity, and

(b) outline the purpose for which the power is exercised.

(4) An authorised person may—

(a) enter the premises,

(b) inspect the premises,

(d) inspect any document or equipment found on the premises,

(e) require any person on the premises to provide any information, or produce any document in the person’s possession or control, that the authorised person considers is relevant to the provision of the regulated service, and

(f) require any person on the premises to provide an explanation of any document or to state where it may be found.

(5) An authorised person may take copies of any document found or produced under sub-paragraph (4).

(6) An authorised person may exercise powers conferred by this paragraph in relation to information or a document only if the information or document is required in connection with the exercise by OFCOM of their functions under this Act.

Notice requiring information or documents at inspection¶

(1) This paragraph applies where OFCOM intend to exercise the powers conferred by paragraph 2 to enter and inspect premises.

(2) OFCOM may give the occupier of the premises a notice requiring relevant information to be provided, or relevant documents to be produced, during the inspection.

(3) Any such notice must be given at least seven days in advance of the proposed inspection date.

(4) For the purposes of this paragraph, information or documents are “relevant” if they are required in connection with the exercise by OFCOM of their functions under this Act.

(5) A notice under this paragraph must—

(a) specify or describe the information to be provided, or the documents to be produced, during the inspection, and

(b) contain information about the consequences of not complying with the notice.

Audit¶

(1) OFCOM may give the provider of a regulated service a notice (an “audit notice”) requiring the provider to permit OFCOM to carry out an audit—

(a) to assess whether the provider has complied or is complying with enforceable requirements that apply in respect of the service, or

(b) to assess—

(i) the nature and level of risk of the provider failing to comply with an enforceable requirement that applies in respect of the service, and

(ii) ways to mitigate such a risk.

(2) An audit notice may require the provider to take any of the following actions for a purpose mentioned in sub-paragraph (1)—

(a) to permit an authorised person to enter and inspect specified premises;

(b) to permit an authorised person to observe the carrying on of the regulated service at the premises;

(d) to assist an authorised person to view information of a specified description that is capable of being viewed using equipment or a device on the premises;

(e) to comply with a request from an authorised person for a copy (in such form as may be requested) of the documents or information to which the person is directed or which the person is assisted to view;

(f) to permit an authorised person to inspect the documents, information or equipment to which the person is directed or which the person is assisted to view;

(g) to provide an authorised person with an explanation of such documents or information;

(h) to make available for interview by the authorised person a specified number of people of a specified description who are involved in the provision of the regulated service (not exceeding the number who are willing to be interviewed).

(3) An audit notice—

(a) must be given at least 28 days in advance of the start of the audit, and

(b) must specify the time or times at which, or period or periods within which, each requirement imposed by the notice must be complied with.

(4) An audit notice may not require a provider to permit an authorised person to enter domestic premises.

(5) An audit notice may not require a provider to do anything that would result in the disclosure of information or documents in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings.

(6) An audit notice must contain information about the consequences of not complying with the requirements which it imposes.

(7) An audit notice may by further notice—

(a) be revoked by OFCOM;

(b) be varied by OFCOM so as to make it less onerous.

(8) OFCOM may require a provider to pay some or all of the reasonable costs of an audit carried out in accordance with an audit notice.

(9) If OFCOM require a provider to pay an amount as mentioned in sub- paragraph (8), paragraph 7 of Schedule 12 applies in relation to the amount as it applies in relation to a penalty within the meaning of that Schedule.

(10) In this paragraph “specified” means specified in an audit notice.

Conditions for issue of a warrant¶

(1) A justice of the peace or (in Northern Ireland) a lay magistrate may issue a warrant in relation to premises specified in an application only if satisfied on sworn information in writing given by an authorised person that—

(a) the premises are being used by the provider of a regulated service in connection with the provision of a regulated service;

(b) there are reasonable grounds to suspect that—

(i) the provider is failing to comply, or has failed to comply, with an enforceable requirement that applies in respect of that service, and

(ii) there is information or equipment on the premises, or there are documents on the premises, relevant to OFCOM’s investigation into that failure (or possible failure); and

(2) The conditions are that, in relation to the premises specified in the application for a warrant—

(a) OFCOM have previously given notice to enter the premises, as required in relation to entry without a warrant under paragraph 2, but a person authorised by OFCOM to exercise powers under that paragraph was denied access,

(b) a requirement imposed by a person acting in the exercise of powers conferred by paragraph 2 has not been complied with,

(d) a requirement of a notice under paragraph 4 (audit notice) has not been complied with,

(e) giving notice to enter the premises would defeat the object of entry, or

(f) OFCOM require access to the premises urgently.

Evidence of authority¶

(1) Before exercising a power of entry under a warrant, an authorised person must—

(a) produce a copy of the warrant,

(b) supply the occupier (if present), or any other person appearing to the authorised person to be in charge of the premises, with a copy of the warrant, and

(i) produce evidence of the authorised person’s identity, and

(ii) outline the purpose for which the power is exercised.

(2) If neither the occupier nor any other person appearing to the authorised person to be in charge of the premises is present, the authorised person must leave a copy of the warrant in a prominent place on the premises.

Powers exercisable by warrant¶

7 An authorised person executing a warrant may do any of the following for the purposes of OFCOM’s investigation into whether there is, or has been, a failure referred to in paragraph 5(1)(b)(i)—

(a) enter the premises specified in the warrant;

(b) search the premises;

(c) inspect any documents or equipment found on the premises, or any information capable of being viewed using equipment or a device on the premises;

(d) require any person on the premises to provide information, including requiring an explanation of any document found on the premises or any information capable of being viewed using equipment or a device on the premises;

(e) require any person on the premises to produce any document in the person’s possession or control;

(f) take copies of any document found on the premises or produced in response to a requirement under paragraph (e);

(g) require information which is stored in electronic form and may be accessed from the premises to be produced in a form in which it can be taken away and in which it is visible and legible (or from which it can readily be produced in a visible and legible form);

(h) operate any equipment found on the premises for the purposes of producing such information in such a form;

(i) require any person on the premises to give the authorised person any assistance that the authorised person may reasonably require (including for the purposes of paragraphs (g) and (h));

(j) take copies of anything produced in accordance with paragraph (g);

(k) seize any document found on the premises or produced in response to a requirement under paragraph (e), or anything produced in accordance with paragraph (g), or any equipment found on the premises;

(l) open any container found on the premises;

(m) take a photograph or video recording of anything found on the premises.

Powers of seizure: supplementary¶

(1) This paragraph applies where the person executing a warrant seizes a document or other thing.

(2) The person must, on request—

(a) give a receipt for it, and

(b) (in the case of a document) give an occupier of the premises a copy of it.

(3) Sub-paragraph (2)(b) does not apply if the person executing the warrant considers that providing a copy would result in undue delay.

(4) Anything seized may be retained for so long as is necessary in all the circumstances.

Further provision about executing warrants¶

9 Entry and search under a warrant must be at a reasonable hour, unless it appears to the person executing it that the purpose of a search would be frustrated or seriously prejudiced by entry at a reasonable hour.

10 Entry and search under a warrant must be within the period of one month starting with the date of its issue.

11 An authorised person executing a warrant may take such other persons and such equipment and materials onto the premises as appear to that person to be necessary.

12 A person taken on to the premises under paragraph 11 may exercise any power conferred on an authorised person by paragraph 7 if the person is in the company and under the supervision of an authorised person executing a warrant.

13 An authorised person may use reasonable force, if necessary, for the purpose of exercising a power under a warrant.

14 A warrant authorises entry on one occasion only, unless it specifies that it authorises multiple entries.

15 If the premises are unoccupied or the occupier is temporarily absent, an authorised person executing a warrant must leave the premises as effectively secured against trespassers as that person found them.

Return of warrants¶

(1) Where a warrant is executed—

(a) it must be returned to the appropriate person (see sub-paragraph (3)) after being executed, and

(b) the person by whom it is executed must write on the warrant a statement of the powers that have been exercised under the warrant.

(2) Where a warrant is not executed, it must be returned to the appropriate person within the time authorised for its execution.

(3) The appropriate person is—

(a) in the case of a warrant issued in England and Wales, the designated officer for the local justice area in which the justice of the peace was acting when issuing the warrant;

(b) in the case of a warrant issued in Scotland, the clerk of the justice of the peace court;

(4) The appropriate person must retain a search warrant returned under sub- paragraph (1) or (2) until the end of the period of 12 months starting with the date of its return.

(5) If during that period the occupier of premises to which the warrant relates asks to inspect it, the occupier must be allowed to do so.

Restrictions on powers ¶

(1) This paragraph applies in relation to—

(a) powers conferred by paragraph 2 (entry and inspection without warrant), and

(b) powers exercisable under a warrant.

(2) Those powers are not exercisable in respect of domestic premises.

(3) Those powers are not exercisable in relation to information or documents in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings.

Offences¶

(1) A person commits an offence if—

(a) the person intentionally obstructs a person acting under this Schedule;

(b) the person fails, without reasonable excuse, to comply with any requirement imposed by a person acting under this Schedule;

(c) in response to a requirement imposed by a person acting under this Schedule, the person provides information that is false in a material respect, knowing that it is false in a material respect or being reckless as to whether it is false in a material respect.

(2) A person who commits an offence under this paragraph is liable—

(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum summary term for either-way offences or a fine (or both);

(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);

(d) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).

Interpretation¶

19 In this Schedule—

“domestic premises” means premises, or a part of premises, used as a dwelling;

“premises” means premises in the United Kingdom.

20 References in this Schedule to a person “acting under this Schedule” are to a person acting—

(a) in the exercise of powers conferred by paragraph 2 (entry and inspection without warrant), or

(b) in the execution of a warrant,

and the reference in paragraph 18(1)(a) also includes a person carrying out an audit in accordance with an audit notice.

21 In this Schedule “enforceable requirement” has the same meaning as in Chapter 6 of Part 7 (see section 111), except that—

(a) it does not include—

(i) a requirement under (or a requirement of a notice under) section 88 (reports by skilled persons),

(ii) a requirement of a notice under section 90 (interviews), or

(iii) a requirement imposed by a person acting under this Schedule;

(b) it includes a requirement imposed by a notice under section 103(1) (notices to deal with terrorism content and CSEA content).

22 In paragraphs 6 to 17¹² and 20 “warrant” means a warrant issued under paragraph 5.

23 In the application of paragraph 5(1) to Scotland, the reference to sworn information in writing has effect as a reference to evidence on oath.

24 In the application of paragraph 5(1) to Northern Ireland, the reference to sworn information in writing has effect as a reference to a complaint on oath.

Schedule 12 Penalties imposed by OFCOM under Chapter 6 of Part 7¶

Section 122

Meaning of “penalty” in this Schedule¶

1 Except as otherwise indicated, references in this Schedule to a “penalty” are to any of the following—

(a) a penalty imposed by a confirmation decision (see sections 112(5)(b) and 117), whether that is—

(i) a penalty of a single amount, or

(ii) a penalty calculated by reference to a daily rate;

(b) a penalty imposed by a penalty notice under section 118;

(d) a penalty imposed by a penalty notice under section 120(6).

Amount of penalties: principles¶

(1) In determining the amount of a penalty to be imposed on a person, OFCOM must, in particular, take into account—

(a) any representations made, and evidence provided, by the person, and

(b) the effects of the failure (or failures) in respect of which the penalty is imposed.

(2) In the case of a penalty imposed by a confirmation decision, OFCOM must also take into account any representations made, and evidence provided, by any other person to whom the earlier provisional notice of contravention relating to the same matter was given.

(3) OFCOM must also take into account—

(a) in the case of a penalty imposed by a confirmation decision, any steps taken by the person towards—

(i) complying with any duty or requirement specified in the provisional notice of contravention given to the person, or

(ii) remedying the failure to comply with any such duty or requirement;

(b) in the case of a penalty imposed by a penalty notice under section 118, any steps taken by the person towards—

(i) complying with any duty or requirement specified in the confirmation decision given to the person, or

(ii) remedying the failure to comply with any such duty or requirement;

(c) in the case of a penalty imposed by a penalty notice under section 119(5), any steps taken by the person towards complying with the notice under section 103(1);

(d) in the case of a penalty imposed by a penalty notice under section 120(6), any steps taken by the person towards paying any amount of the fee due to OFCOM.

(4) A penalty must be of an amount that OFCOM consider to be—

(a) appropriate, and

(b) proportionate to the failure (or failures) in respect of which it is imposed.

(5) See also section 392 of the Communications Act (which requires OFCOM to produce guidelines about their determination of the amount of penalties that they impose).

Limitation to type and amount of penalties previously proposed¶

(1) A confirmation decision or penalty notice may not impose a penalty of a different kind, of a greater amount or (in the case of a penalty calculated by reference to a daily rate) payable over a longer period than that proposed in the earlier notice in relation to the same matter.

(2) Sub-paragraph (1) applies in a case where a provisional notice of contravention and confirmation decision in relation to the same matter are both given jointly (in accordance with Schedule 14) to the same entities, but does not otherwise apply in relation to a penalty for which two or more entities are jointly and severally liable.

(3) In this paragraph “penalty notice” means a penalty notice under section 118, 119(5) or 120(6).

Maximum amount of penalties¶

(1) Where a penalty is imposed on a person in respect of a regulated service provided by that person, the maximum amount of the penalty for which the person is liable is whichever is the greater of—

(a) £18 million, and

(b) 10% of the person’s qualifying worldwide revenue for the person’s most recent complete accounting period (subject to sub-paragraph (5)).

(2) But if the person does not have an accounting period, the maximum amount of the penalty for which the person is liable is £18 million.

(3) The maximum amount of a penalty for which a person not within sub- paragraph (1) is liable is £18 million.

(4) If the person’s first accounting period has not yet ended, sub-paragraph (1)(b) is to be read as referring to 10% of the amount that OFCOM estimate to be the person’s likely qualifying worldwide revenue for that period.

(5) If the duration of the accounting period by reference to which an amount of qualifying worldwide revenue is calculated is less than a year, the amount mentioned in sub-paragraph (1)(b) is to be proportionately increased.

If the duration of that accounting period is more than a year, that amount is to be proportionately reduced.

(6) The amount of a person’s qualifying worldwide revenue for an accounting period is, in the event of a disagreement between the person and OFCOM, the amount determined by OFCOM.

(7) In the case of a confirmation decision that imposes a penalty of a single amount and a penalty calculated by reference to a daily rate, references in sub-paragraphs (1) to (3)³ to the maximum amount for which a person is liable are to the maximum amount of both those penalties taken together.

(8) In this paragraph “accounting period”, in relation to a person, means a period in respect of which accounts are prepared in relation to that person or, where that person is an individual, in respect of that individual’s business of providing a regulated service.

(9) In this paragraph and in paragraph 5, “qualifying worldwide revenue” has the meaning given to it in a statement produced and published by OFCOM under section 72 (see subsection (2) of that section).

Maximum amount of penalties: group of entities¶

(1) This paragraph contains modifications of paragraph 4 in a case where, in accordance with Schedule 14, two or more entities are jointly and severally liable for a penalty.

(2) Sub-paragraphs (3) to (5) of this paragraph³ apply instead of paragraph 4(1) to (4)⁴.

(3) The maximum amount of the penalty for which the entities are liable is whichever is the greater of—

(a) £18 million, and

(b) 10% of the qualifying worldwide revenue of the group of entities that consists of—

(i) the entity that is the provider of the regulated service to which the decision or notice in question relates (“entity E”), and

(ii) every other entity which (at the time the decision or notice is given) is a group undertaking in relation to entity E.

(4) In sub-paragraph (3)(b), the reference to the qualifying worldwide revenue of a group of entities is to—

(a) the amount of the group’s qualifying worldwide revenue for the most recent complete accounting period of the entities liable for the penalty, or

(b) if the first accounting period of the entities liable for the penalty has not yet ended, the amount that OFCOM estimate to be the group’s likely qualifying worldwide revenue for that period.

(5) In a case where the accounting periods of the entities liable for the penalty are different—

(a) the reference in sub-paragraph (4)(a) to the accounting period of the entities is to be read as a reference to the accounting period of any of the entities (at OFCOM’s discretion), and

(b) sub-paragraph (4)(b) is to apply as if—

(i) for “the first accounting period of the entities” there were substituted “the first accounting period of all of the entities”, and

(ii) for “that period” there were substituted “the accounting period of any of the entities (at OFCOM’s discretion)”.

(6) Sub-paragraphs (5), (6) and (7) of paragraph 4 are to be read with the necessary modifications in their application for the purposes of this paragraph.

(7) In this paragraph—

“accounting period”, in relation to an entity, means a period in respect of which accounts are prepared in relation to that entity;

“group undertaking” has the meaning given by section 1161(5) of the Companies Act 2006.

(8) For the purposes of this paragraph, sections 1161(5) and 1162 of, and Schedule 7 to, the Companies Act 2006—

(a) are to apply in relation to an entity which is not an undertaking (as defined in section 1161(1) of that Act) as they apply in relation to an undertaking, and

(b) are to be read with any necessary modifications if applied to an entity formed under the law of a country outside the United Kingdom.

Providers of regulated services¶

6 Any power conferred by Chapter 6 of Part 7 to impose a penalty on a provider of a regulated service is to be read as including power to impose a penalty on a person who was at any time a provider of such a service but who has ceased to be a provider of such a service (and that Chapter and this Schedule are to be read accordingly).

Recovery of penalties¶

(1) In England and Wales, a penalty is recoverable—

(a) if the county court so orders, as if it were payable under an order of that court;

(b) if the High Court so orders, as if it were payable under an order of that court.

(2) In Scotland, a penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(3) In Northern Ireland, a penalty is recoverable—

(a) if a county court so orders, as if it were payable under an order of that court;

(b) if the High Court so orders, as if it were payable under an order of that court.

Paying penalties into the Consolidated Fund¶

(1) Section 400 of the Communications Act (destination of penalties etc) is amended as follows.

(2) In subsection (1), after paragraph (i) insert—

(j) an amount paid to OFCOM in respect of a penalty imposed by them under Chapter 6 of Part 7 of the Online Safety Act 2022.
Amendment · 1 operation
insert section-400-1

(3) In subsection (2), after “applies” insert “(except an amount mentioned in subsection (1)(j))”.

(4) After subsection (3) insert—

(3A) Where OFCOM receive an amount mentioned in subsection (1)(j), it must be paid into the Consolidated Fund of the United Kingdom.
Amendment · 1 operation
insert section-400

Schedule 13 Amendments consequential on offences in Part 10 of this Act¶

Section 158

Part 1 Amendments consequential on offences in sections 150, 151 and 152¶

Sexual Offences Act 2003¶

1 In Schedule 5 to the Sexual Offences Act 2003 (cases where sexual harm prevention orders may be made)—

(a) omit paragraph 61A, and

(b) after paragraph 63C insert—

63D An offence under section 150 of the Online Safety Act 2022
(harmful communications).
63E An offence under section 151 of that Act (false
communications).
63F An offence under section 152 of that Act (threatening
communications).”

Regulatory Enforcement and Sanctions Act 2008¶

2 In Schedule 3 to the Regulatory Enforcement and Sanctions Act 2008 (relevant enactments for the purposes of relevant functions to which Parts 1 and 2 of that Act apply)—

(a) omit the entry relating to the Malicious Communications Act 1988, and

(b) at the appropriate place insert—

Online Safety Act 2022, sections 150, 151 and 152

Part 2 Amendments consequential on offence in section 156¶

Children and Young Persons Act 1933¶

3 In Schedule 1 to the Children and Young Persons Act 1933 (offences against children and young persons with respect to which special provisions of Act apply), in the entry relating to the Sexual Offences Act 2003, after “66” insert “, 66A”.

Sexual Offences Act 2003¶

(1) The Sexual Offences Act 2003 is amended as follows.

(2) In section 136A(3A) (specified child sex offences), in paragraph (c), after “66” insert “, 66A”.

(3) In Schedule 3 (sexual offences for purposes of Part 2), after paragraph 33 insert—

(33A) An offence under section 66A of this Act (sending etc photograph or film of genitals) if—
(a) where the offender was under 18, the offender is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;
(b) in any other case—
(i) the victim was under 18, or
(ii) the offender, in respect of the offence or finding, is or has been—
(a) sentenced to a term of imprisonment,
(b) detained in a hospital, or
(c) made the subject of a community sentence of at least 12 months.”

Criminal Justice Act 2003¶

(1) The Criminal Justice Act 2003 is amended as follows.

(2) In Part 2 of Schedule 15 (specified sexual offences for purposes of section 325), after paragraph 149 insert—

(149A) An offence under section 66A of that Act (sending etc photograph or film of genitals).

(3) In Schedule 34A (child sex offences for purposes of section 327A), in paragraph 10, after “66” insert “, 66A”.

Anti-social Behaviour, Crime and Policing Act 2014¶

6 In section 116 of the Anti-social Behaviour, Crime and Policing Act 2014 (information about guests at hotels believed to be used for child sexual exploitation), in subsection (8)(c), in the entry that relates to exposure and voyeurism offences in the Sexual Offences Act 2003, after “66” insert “, 66A”.

Modern Slavery Act 2015¶

7 In Schedule 4 to the Modern Slavery Act 2015 (offences to which defence in section 45 does not apply), in paragraph 33 (offences under Sexual Offences Act 2003), after the entry for section 66 insert—

section 66A (sending etc photograph or film of genitals)

Sentencing Act 2020¶

8 In Part 2 of Schedule 18 to the Sentencing Act 2020 (specified sexual offences for purposes of section 306), in paragraph 38 (offences under Sexual Offences Act 2003), after sub-paragraph (ax) insert—

(axa) section 66A (sending etc photograph or film of genitals);

Schedule 14 Liability of parent entities etc¶

Section 161

Joint provisional notices of contravention¶

(1) This paragraph applies if—

(a) OFCOM are satisfied that there are grounds to give an entity (“E”) a provisional notice of contravention relating to a regulated service, and

(b) E is the provider of that service.

(2) If there is an entity which is a parent undertaking in relation to E, the provisional notice of contravention may be given—

(a) to E alone, or

(b) jointly to E and to an entity which is a parent undertaking in relation to E.

(3) If there is an entity which is a subsidiary undertaking in relation to E, the provisional notice of contravention may be given—

(a) to E alone, or

(b) jointly to E and to an entity which is a subsidiary undertaking in relation to E.

(4) If E is a subsidiary undertaking and there is an entity which is a fellow subsidiary undertaking in relation to E, the provisional notice of contravention may be given—

(a) to E alone, or

(b) jointly to E and to an entity which is a fellow subsidiary undertaking in relation to E.

(5) If an individual or individuals control E (see paragraph 5(4)), the provisional notice of contravention may be given—

(a) to E alone, or

(b) jointly to E and to the individual or individuals who control E.

(6) If a provisional notice of contravention is given jointly as mentioned in sub- paragraph (2)(b), (3)(b), (4)(b) or (5)(b), section 110(8) is to be read, in its application for the purposes of this paragraph, as if it included a reference to representations about whether joint and several liability would be appropriate.

Liability of parent entities for failures by subsidiary entities¶

(1) This paragraph applies if—

(a) OFCOM are satisfied that there are grounds to give an entity (“E”) a relevant decision or notice relating to a regulated service,

(b) E is the provider of that service, and

(2) The relevant decision or notice may be given—

(a) to E alone, or

(b) (subject to sub-paragraph (4)) jointly to E and to a parent entity.

(3) But before giving a penalty notice to a parent entity, or giving a confirmation decision to a parent entity which was not previously given a provisional notice of contravention relating to the same matter, OFCOM must give that entity an opportunity to make representations to OFCOM about—

(a) the matters contained in the decision or notice, and

(b) whether joint and several liability would be appropriate.

(4) OFCOM may not give a relevant decision or notice to a parent entity (“P”) if—

(a) P meets the condition in section 1162(2)(a) of the Companies Act in relation to E, and

(b) P makes representations (under section 110(8) as applied by paragraph 1(6), or under sub-paragraph (3)) which satisfy OFCOM that P does not meet any condition in section 1162(2)(b), (c) or (d) or (4) of the Companies Act in relation to E.

(5) If a relevant decision or notice is given to entities jointly as mentioned in sub- paragraph (2)(b), those entities are jointly and severally liable to comply with the requirements, or (as the case may be) pay the penalty, imposed by the decision or notice.

(6) See also paragraph 5 of Schedule 12 (maximum amount of penalties: group of entities).

Liability of subsidiary entities for failures by parent entities¶

(1) This paragraph applies if—

(a) OFCOM are satisfied that there are grounds to give an entity (“E”) a relevant decision or notice relating to a regulated service,

(b) E is the provider of that service, and

(2) The relevant decision or notice may be given—

(a) to E alone, or

(b) jointly to E and to a subsidiary entity.

(3) But—

(a) before giving a penalty notice to a subsidiary entity, or giving a confirmation decision to a subsidiary entity which was not previously given a provisional notice of contravention relating to the same matter, OFCOM must give that entity an opportunity to make representations to OFCOM about—

(i) the matters contained in the decision or notice, and

(ii) whether joint and several liability would be appropriate; and

(b) a relevant decision or notice may be given to a subsidiary entity only if that entity’s acts or omissions contributed to the failure in respect of which the decision or notice is given.

(4) If a relevant decision or notice is given to entities jointly as mentioned in sub- paragraph (2)(b), those entities are jointly and severally liable to comply with the requirements, or (as the case may be) pay the penalty, imposed by the decision or notice.

(5) See also paragraph 5 of Schedule 12 (maximum amount of penalties: group of entities).

Liability of fellow subsidiary entities for failures by subsidiary entities¶

(1) This paragraph applies if—

(a) OFCOM are satisfied that there are grounds to give an entity (“E”) a relevant decision or notice relating to a regulated service,

(b) E is the provider of that service,

(d) there is an entity which is a fellow subsidiary undertaking in relation to E (a “fellow subsidiary entity”).

(2) The relevant decision or notice may be given—

(a) to E alone, or

(b) jointly to E and to a fellow subsidiary entity.

(3) But—

(a) before giving a penalty notice to a fellow subsidiary entity, or giving a confirmation decision to a fellow subsidiary entity which was not previously given a provisional notice of contravention relating to the same matter, OFCOM must give that entity an opportunity to make representations to OFCOM about—

(i) the matters contained in the decision or notice, and

(ii) whether joint and several liability would be appropriate; and

(b) a relevant decision or notice may be given to a fellow subsidiary entity only if that entity’s acts or omissions contributed to the failure in respect of which the decision or notice is given.

(5) See also paragraph 5 of Schedule 12 (maximum amount of penalties: group of entities).

Liability of controlling individuals for failures by entities¶

(1) This paragraph applies if—

(a) OFCOM are satisfied that there are grounds to give an entity (“E”) a relevant decision or notice relating to a regulated service,

(b) E is the provider of that service, and

(2) The relevant decision or notice may be given—

(a) to E alone, or

(b) (subject to sub-paragraph (5)) jointly to E and to the individual or individuals who control E.

(3) But before giving a penalty notice to an individual, or giving a confirmation decision to an individual who was not previously given a provisional notice of contravention relating to the same matter, OFCOM must give that individual an opportunity to make representations to OFCOM about—

(a) the matters contained in the decision or notice, and

(b) whether joint and several liability would be appropriate.

(4) An individual or individuals are to be taken to “control” E if that individual or those individuals would, if they were an undertaking, be a parent undertaking in relation to E within the meaning of section 1162 of the Companies Act by reason of meeting the condition in subsection (2)(a), (b), (c) or (d) or (4)(a) of that section.

(5) OFCOM may not give a relevant decision or notice to an individual or individuals (“P”) if—

(a) the condition by reason of which P controls E is the condition in section 1162(2)(a) of the Companies Act, and

(b) P makes representations (under section 110(8) as applied by paragraph 1(6), or under sub-paragraph (3)) which satisfy OFCOM that P does not control E by reason of any condition in section 1162(2)(b), (c) or (d) or (4) of the Companies Act.

(6) If a relevant decision or notice is given jointly to E and to an individual or individuals as mentioned in sub-paragraph (2)(b), that entity and that individual or those individuals are jointly and severally liable to comply with the requirements, or (as the case may be) pay the penalty, imposed by the decision or notice.

OFCOM’s guidance¶

6 OFCOM’s guidance under section 129 must include information about the factors that OFCOM would consider it appropriate to take into account when considering whether to give a decision or notice jointly as mentioned in this Schedule.

Interpretation¶

7 In this Schedule—

“the Companies Act” means the Companies Act 2006;

“fellow subsidiary undertaking” has the meaning given by section 1161(4) of the Companies Act;

“parent undertaking” and “subsidiary undertaking” are to be read in accordance with section 1162 of the Companies Act;

“penalty notice” means a penalty notice under section 118, 119(5) or 120(6);

“relevant decision or notice” means—

(a) a confirmation decision that includes requirements of a kind described in section 113(1) or imposes a penalty as mentioned in section 117 (or both), or

(b) a penalty notice.

8 In its application for the purposes of this Schedule, paragraph 4 of Schedule 7 to the Companies Act is to be read as if the reference to operating and financial policies were to policies relating to compliance with the regulatory requirements imposed by this Act.

9 For the purposes of this Schedule, sections 1161(4) and 1162 of, and Schedule 7 to, the Companies Act—

(a) are to apply in relation to an entity which is not an undertaking (as defined in section 1161(1) of that Act) as they apply in relation to an undertaking, and

(b) are to be read with any necessary modifications if applied to an entity formed under the law of a country outside the United Kingdom.