Legislation – Online Safety Act 2023

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PART 7OFCOM’s powers and duties in relation to regulated services

CHAPTER 5Regulated user-to-user services and regulated search services: notices to deal with terrorism content and CSEA content

124Matters relevant to a decision to give a notice under section 121(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 121(1) relating to a Part 3 service to the provider of the service.

(2)

In the case of a notice requiring the use of accredited technology, the matters are as follows—

(a)

the kind of service it is;

(b)

the functionalities of the service;

(c)

the user base 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 contents of the skilled person’s report obtained as required by section 122;

(i)

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;

(j)

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);

(k)

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 extent to which the use of the specified technology would or might—

(i)

have an adverse impact on the availability of journalistic content on the service, or

(ii)

result in a breach of the confidentiality of journalistic sources;

(l)

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), (g) and (l) 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 the case of a notice relating to the development or sourcing of technology, subsection (2) applies—

(a)

as if references to relevant content were to CSEA content, and

(b)

with the omission of paragraphs (i), (j), (k) and (l).

(5)

In this section—

“journalistic content” has the meaning given by section 19;

“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 121(1).