Legislation – Online Safety Act 2023
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PART 7OFCOM’s powers and duties in relation to regulated services
CHAPTER 7Committees, research and reports
152Advisory 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
(c)
persons with expertise in the prevention and handling of disinformation and misinformation online.
(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 77 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 (duties 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.
153Functions 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)
“(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 2023 (see Parts 3 and 5 of that Act).”
(4)
“(8)
In this section references to “matters mentioned in subsection (2)” do not include references to the matters mentioned in subsection (3A).”
154Research about users’ experiences of regulated services
(1)
Section 14 of the Communications Act (consumer research) is amended as follows.
(2)
“(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)
“(8A)
In subsection (6B) the following terms have the same meaning as in the Online Safety Act 2023—
“provider” (see section 226 of that Act);
“regulated service”, “regulated user-to-user service” and “regulated search service” (see section 4 of that Act);
“United Kingdom user” (see section 227 of that Act).”
F1154AInformation for research about online safety matters
(1)
The Secretary of State may by regulations require providers of regulated services to provide information for purposes related to the carrying out of independent research into online safety matters.
(2)
Regulations under this section may (for example) provide for—
(a)
the making of applications by persons seeking information;
(b)
the procedure to be followed in the making and determination of applications;
(c)
the grounds on which applications are to be determined;
(d)
the imposition of requirements described in subsection (1) to be effected by means of notices given to providers of regulated services (“researcher access notices”);
(e)
the contents of researcher access notices;
(f)
the procedure to be followed in the giving of researcher access notices;
(g)
the form in which, and the means by which, information is to be provided;
(h)
the safeguards to be applied in respect of the handling of information;
(i)
the charging of fees payable by applicants for information under the regulations and by providers of regulated services;
(j)
the enforcement of requirements imposed by the regulations;
(k)
appeals in respect of decisions taken under the regulations.
(3)
Provision about enforcement under subsection (2)(j) may include provision—
(a)
about investigations (including the making of reports);
(b)
conferring powers of entry, inspection and audit;
(c)
imposing monetary penalties;
(d)
creating offences, but such provision may not impose a penalty for an offence that is greater than a penalty of any of the descriptions mentioned in section 113.
(4)
Regulations under this section—
(a)
may authorise or require anything that is to be done under, or for the purposes of, the regulations to be done by an appropriate person;
(b)
may confer a discretion on an appropriate person for the purposes of provision under paragraph (a);
(c)
may apply (with or without modifications) other provisions of this Act.
(5)
Regulations under this section may apply generally or only in relation to specified descriptions of—
(a)
regulated services;
(b)
persons carrying out independent research;
(c)
research into online safety matters or the purposes of such research;
(d)
information,
and provision made by virtue of section 224(1) in connection with this section may, in particular, make different provision for different descriptions of services, researchers, research or information.
(6)
Regulations under this section may not require—
(a)
processing of personal data that would contravene the data protection legislation (but in determining whether processing of personal data would do so, the duty imposed under the regulations to provide information is to be taken into account);
(b)
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.
(7)
Before making regulations under this section the Secretary of State must consult—
(a)
OFCOM,
(b)
the Information Commissioner,
(c)
persons who appear to the Secretary of State to represent providers of regulated services,
(d)
persons who appear to the Secretary of State to represent the interests of persons carrying out independent research into online safety matters, and
(e)
such other persons as the Secretary of State considers appropriate.
(8)
For the purposes of this section—
(a)
“independent research” is research carried out other than on behalf of a provider of a regulated service;
(b)
references to an “appropriate person” are references to—
(i)
OFCOM, or
(ii)
such other person as the Secretary of State considers appropriate to carry out functions under regulations made under this section (and the regulations may include provision establishing a body for this purpose).
155Consumer consultation
(1)
Section 16 of the Communications Act (consumer consultation) is amended as follows.
(2)
“(da)
regulated services;”.
(3)
“(5A)
As regards OFCOM’s functions under the Online Safety Act 2023 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)
“(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)
“(14)
In this section the following terms have the same meaning as in the Online Safety Act 2023—
“provider”, in relation to a regulated service (see section 226 of that Act);
“regulated service” (see section 4 of that Act);
“United Kingdom user” (see section 227 of that Act).”
156OFCOM’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).
157OFCOM’s reports about use of age assurance
(1)
OFCOM must produce and publish a report assessing—
(a)
how providers of regulated services have used age assurance for the purpose of compliance with their duties set out in this Act,
(b)
how effective the use of age assurance has been for that purpose, and
(c)
whether there are factors that have prevented or hindered the effective use of age assurance, or a particular kind of age assurance, for that purpose,
(and in this section, references to a report are to a report described in this subsection).
(2)
A report must, in particular, consider whether the following have prevented or hindered the effective use of age assurance—
(a)
the costs to providers of using it, and
(b)
the need to 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).
(3)
Unless the Secretary of State requires the production of a further report (see subsection (6)), the requirement in subsection (1) is met by producing and publishing one report within the period of 18 months beginning with the day on which sections 12 and 81(2) come into force (or if those provisions come into force on different days, the period of 18 months beginning with the later of those days).
(4)
In preparing a report, OFCOM must consult—
(a)
the Information Commissioner, and
(b)
such other persons as OFCOM consider appropriate.
(5)
OFCOM must send a copy of a report to the Secretary of State, and the Secretary of State must lay it before Parliament.
(6)
The Secretary of State may require OFCOM to produce and publish a further report in response to—
(a)
the development of age assurance technology, or
(b)
evidence of the reduced effectiveness of such technology.
(7)
But such a requirement may not be imposed—
(a)
within the period of three years beginning with the date on which the first report is published, or
(b)
more frequently than once every three years.
(8)
For further provision about reports under this section, see section 164.
(9)
In this section “age assurance” means age verification or age estimation.
158OFCOM’s reports about news publisher content and journalistic content
(1)
OFCOM must produce and publish a report assessing the impact of the regulatory framework provided for in this Act on the availability and treatment of news publisher content and journalistic content on Category 1 services (and in this section, references to a report are to a report described in this subsection).
(2)
Unless the Secretary of State requires the production of a further report (see subsection (6)), the requirement in subsection (1) is met by producing and publishing one report within the period of two years beginning with the day on which sections 18 and 19 come into force (or if those sections come into force on different days, the period of two years beginning with the later of those days).
(3)
A report must, in particular, consider how effective the duties to protect such content set out in sections 18 and 19 are at protecting it.
(4)
In preparing a report, OFCOM must consult—
(a)
persons who represent recognised news publishers,
(b)
persons who appear to OFCOM to represent creators of journalistic content,
(c)
persons who appear to OFCOM to represent providers of Category 1 services, and
(d)
such other persons as OFCOM consider appropriate.
(5)
OFCOM must send a copy of a report to the Secretary of State, and the Secretary of State must lay it before Parliament.
(6)
The Secretary of State may require OFCOM to produce and publish a further report if the Secretary of State considers that the regulatory framework provided for in this Act is, or may be, having a detrimental effect on the availability and treatment of news publisher content or journalistic content on Category 1 services.
(7)
But such a requirement may not be imposed—
(a)
within the period of three years beginning with the date on which the first report is published, or
(b)
more frequently than once every three years.
(8)
For further provision about reports under this section, see section 164.
(9)
In this section—
“journalistic content” has the meaning given by section 19;
“news publisher content” has the meaning given by section 55;
“recognised news publisher” has the meaning given by section 56.
(10)
For the meaning of “Category 1 service”, see section 95 (register of categories of services).
159OFCOM’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 77.
(2)
OFCOM’s transparency reports must contain—
(a)
a summary of conclusions drawn from the transparency reports produced under section 77 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
(c)
any other information from such transparency reports which OFCOM consider it appropriate to include.
(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 77 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 77 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 164.
160OFCOM’s report about reporting and complaints procedures
(1)
OFCOM must produce a report assessing the measures taken or in use by providers of Part 3 services to enable users and others to—
(a)
report particular kinds of content present on such services, and
(b)
make complaints to providers of such services.
(2)
OFCOM’s report must take into account the experiences of users and others in reporting content and making complaints to providers of Part 3 services, including—
(a)
how clear the procedures are for reporting content and making complaints,
(b)
how easy it is to do those things, and
(c)
whether providers are taking appropriate and timely action in response to reports and complaints that are made.
(3)
The report must include advice from OFCOM about whether they consider that the Secretary of State should make regulations under section 217 (duty about alternative dispute resolution procedure).
(4)
In the report, OFCOM may make recommendations that they consider would improve the experiences of users and others in reporting content or making complaints to providers of Part 3 services, or would deliver better outcomes in relation to reports or complaints that are made.
(5)
In preparing the report under this section, OFCOM must consult—
(a)
the Secretary of State,
(b)
persons who appear to OFCOM to represent the interests of United Kingdom users of Part 3 services,
(c)
persons who appear to OFCOM to represent the interests of children (generally or with particular reference to online safety matters),
(d)
the Information Commissioner, and
(e)
such other persons as OFCOM consider appropriate.
(6)
The report may draw on OFCOM’s research under section 14 of the Communications Act (see subsection (6B) of that section).
(7)
The report is not required to address any matters which are the subject of a report by OFCOM under section 158 (report about the availability and treatment of news publisher content and journalistic content).
(8)
OFCOM must publish the report within the period of two years beginning with the day on which this section comes into force.
(9)
OFCOM must send a copy of the report to the Secretary of State, and the Secretary of State must lay it before Parliament.
(10)
The Secretary of State must publish a statement responding to the report within the period of three months beginning with the day on which the report is published, and the statement must include a response to OFCOM’s advice about whether to make regulations under section 217.
(11)
The statement 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)
For further provision about the report under this section, see section 164.
(13)
References in this section to “users and others” are to United Kingdom users and individuals in the United Kingdom.
161OFCOM’s report about use of app stores by children
(1)
OFCOM must produce a report about the use of app stores by children.
(2)
In particular, the report must—
(a)
assess what role app stores play in children encountering content that is harmful to children, search content that is harmful to children or regulated provider pornographic content by means of regulated apps which the app stores make available,
(b)
assess the extent to which age assurance is currently used by providers of app stores, and how effective it is, and
(c)
explore whether children’s online safety would be better protected by the greater use of age assurance or particular kinds of age assurance by such providers, or by other measures.
(3)
OFCOM must publish the report during the period beginning two years, and ending three years, after the day on which sections 12 and 29 come into force (or if those sections come into force on different days, the later of those days).
(4)
For further provision about the report under this section, see section 164.
(5)
In this section—
“age assurance” means age verification or age estimation;
“app” includes an app for use on any kind of device, and “app store” is to be read accordingly;
“content that is harmful to children” has the same meaning as in Part 3 (see section 60);
“regulated app” means an app for a regulated service;
“regulated provider pornographic content” has the same meaning as in Part 5 (see section 79);
“search content” has the same meaning as in Part 3 (see section 57).
(6)
In this section references to children are to children in the United Kingdom.
162OFCOM’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
(c)
assessing the extent to which greater access to information for such purposes might be achieved.
(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,
(c)
United Kingdom Research 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 18 months 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 164.
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163OFCOM’s report in connection with investigation into a death
(1)
Subsection (2) applies if OFCOM receive—
(a)
a notice from a senior coroner under paragraph 1(2) of Schedule 5 to the Coroners and Justice Act 2009 in connection with an investigation into the death of a person;
(b)
a request for information in connection with the investigation of a procurator fiscal into, or an inquiry held or to be held in relation to, the death of a person;
(c)
a notice from a coroner under section 17A(2) of the Coroners Act (Northern Ireland) 1959 (c. 15 (N.I.)) in connection with—
(i)
an investigation to determine whether an inquest into the death of a person is necessary, or
(ii)
an inquest in relation to the death of a person.
(2)
OFCOM may produce a report for use by the coroner or procurator fiscal, dealing with any matters that they consider may be relevant.
(3)
In subsection (1)(b) “inquiry” means an inquiry held, or to be held, under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2).
164OFCOM’s reports
(1)
OFCOM may from time to time produce and publish reports about online safety matters.
(2)
(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 128 (report in connection with notices to deal with terrorism content and CSEA content),
(b)
a report under section 157 (report about use of age assurance),
(c)
a report under section 158 (report about news publisher content and journalistic content),
(d)
a report under section 159 (transparency report),
(e)
a report under section 160 (report about reporting and complaints procedures),
(f)
a report under section 161 (report about use of app stores by children),
(g)
a report under section 162 (report about researchers’ access to information), and
(h)
a report produced under this section.
(6)
See also section 116(3) (restriction on publishing intelligence service information).