Legislation – Online Safety Act 2023

Revised legislation carried on this site may not be fully up to date. At the current time any known changes or effects made by subsequent legislation have been applied to the text of the legislation you are viewing by the editorial team. Please see ‘Frequently Asked Questions’ for details regarding the timescales for which new effects are identified and recorded on this site.

PART 8Appeals and super-complaints

CHAPTER 1Appeals

167Appeals against OFCOM decisions relating to the register under section 95

(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 95(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 95(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 95(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.

168Appeals against OFCOM notices

(1)

An appeal to the Upper Tribunal against OFCOM’s decision to give to a person—

(a)

a notice under section 121(1) (notices to deal with terrorism content and CSEA content),

(b)

a confirmation decision, or

(c)

a penalty notice,

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)