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01/03/24

The Online Safety Act 2023 | Ofcom's Powers

The Online Safety Act 2023 | Ofcom's Powers
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To bolster the implementation of the freshly established regulatory framework under The Online Safety Act 2023 ('the Act'), additional functions and authorities have been granted to the regulator, The Office of Communications ('Ofcom').

John Veale explains the nature of Information Notices available to Ofcom and the offences which can be committed when failing to comply.

What is Ofcom?

Ofcom is the Regulator for the broadcasting, telecommunications and postal services and derives its powers from the Communications Act 2003.

In addition to overseeing the performance and quality of services like broadband, mobile services, and Royal Mail, it also monitors online communications to enhance user safety and prevent harm, amongst other things. This includes ensuring companies implement effective systems to mitigate risks and prevent harm. The activities of Ofcom, in relation to online services, are designed to:

  • ensure high levels of protection for vulnerable adults and children,
  • monitor online service providers to ensure that appropriate and proportionate safety measures are taken,
  • increase the compliance and transparency of providers,
  • promote effective technologies that reduce risks of harm to consumers.

Information Powers and Notices

The Act provides several new powers to Ofcom to assist in the regulation and investigation of service providers.

Sections 100 to 103 of Chapter 4 of the Communications Act 2003 contain the following powers.

Section 100

Section 100 grants Ofcom the authority, by way of Notice, to require relevant persons to provide necessary information as it requires for the purpose of exercising or deciding whether to exercise any of its online safety duties.

This authority must be undertaken in a way that is proportionate to the intended use to which the information is to be put in the exercise of Ofcom’s functions.

This power may require a relevant person to:

  • obtain or generate information,
  • provide information about the use of a service by a named individual.

Additionally, this power can require a relevant person within the categories (a) to (d) below to take steps so that Ofcom is able to view remotely information:

  • demonstrating, in real time, the operation of systems, processes or features, including functionalities and algorithms, used by a service,
  • generated by a service, in real time, by the performance of a test or demonstration of a kind required by a specified notice.

Relevant persons are a provider:
(a) of a user-to-user service or a search service,
(b) of an internet service on which regulated provider pornographic content is published or displayed,
(c) of an ancillary service,
(d) of an access facility,
(e) who appears to create/obtain, or to be able to generate or obtain, information required by OFCOM to carry out its functions.

Section 101

Section 101 pertains to information in connection with an investigation into the death of a child and provides that, by notice, Ofcom can require a relevant individual to provide information for the purpose of:

  • responding to a Notice given by 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 child, or preparing a report in connection with such an investigation,
  • responding to a Request for Information in connection with the investigation of a procurator fiscal into an inquiry held, or to be held, in relation to the death of a child or preparing a report in connection with such an enquiry.

Ofcom may request a relevant person to provide information about the use of a regulated service by the child whose death is under investigation including:

  • content encountered by the child by means of the service,
  • how the content came to be encountered by the child (including the role of algorithms or particular functionalities),
  • how the child interacted with the content (for example, by viewing, sharing, or storing it or enlarging or pausing on it), and
  • content generated, uploaded, or shared by the child.

Section 102

Section 102 states that an Information Notice is allowed to require information in any form, including an electronic form, and must specify:

  • or describe the information to be provided,
  • why Ofcom requires the information,
  • the form and manner in which it must be provided.

The Information Notice must also:

  • contain information about the consequences of not complying with it,
  • specify the date and time on which information should be provided and may also dictate a location at which information should be provided.

Offences in connection with Information Notices

The Act creates the following offences.

Section 109 Offences in connection with Information Notices

A person commits an offence by:

  • failing to comply with the requirement of an Information Notice, (unless it can be shown that it was not reasonably practicable to do so at that time but that all reasonable steps have subsequently been taken to comply),
  • knowingly providing information that is false in a material aspect or recklessly as to whether it is false,
  • providing encrypted information which is not possible for Ofcom to understand with the intention of preventing Ofcom from understanding such information,
  • suppressing, destroying, altering information, or causing or permitting such action to occur to documents required for production by an Information Notice with the intent of depriving Ofcom of the correct detail.

Section 110 Senior managers’ liability offences

This section creates personal liability for senior managers by providing that an individual, named as a senior manager of an entity, commits an offence if the entity commits an offence under any of the section 109 offences listed above ‘and the individual has failed to take all reasonable steps to prevent that offence being committed’.

It may be a defence for an individual to show that he:

  • was a senior manager for such a short time after the Information Notice was given that he could not reasonably have been expected to take steps to prevent the offence being committed,
  • was not a senior manager at the time the offence was committed,
  • had no knowledge of being named as senior manager.

Sections 111 & 112 Offences

Schedule 12 of the Act comprehensively details Ofcom’s powers of entry, inspection, and audit.

Section 111 creates the following offences arising from such powers:

  • failing without reasonable excuse to comply with a requirement of an Audit Notice,
  • knowingly providing false information in response to an Audit Notice,
  • suppressing, destroying, altering information or causing or permitting such action to occur to documents required for production by an Information Notice with the intent of depriving Ofcom of the correct detail.

Section 112 contains ‘Other information offences’ whereby a person commits an offence by:

  • intentionally obstructing or delaying a person from, for example, copying a document.
  • failing, without reasonable excuse, to attend or participate in an Ofcom interview.
  • knowingly or recklessly providing false information during an Ofcom interview.

Penalties For Non-Compliance

In addition to a Court enforcing compliance with the Information Notice upon conviction:

  • a Magistrates’ Court may impose, dependent upon the offence committed, a fine, a term of imprisonment, not exceeding the maximum term a Magistrates’ Court can impose or both.
  • a Crown Court may impose a fine, a term of imprisonment not exceeding two years or both.

How Can We Assist?

The contents and requirements of The Online Safety Act 2023 are extremely lengthy, detailed and complicated and likely to be extensively extended in due course. The KANGS team monitors the constant changes in legislation and is well placed to advise clients, whether individuals or corporate upon the manner in which their businesses are affected.

Additionally, KANGS on a daily basis represents clients being investigated or prosecuted for alleged criminal offences and breaches of regulatory requirements.
If we can be of assistance, please do not hesitate to contact our Team, who would be delighted to assist you.

We welcome enquiries by:
Email: info@kangssolicitors.co.uk
Telephone: 0333 370 4333

Hamraj Kang

Hamraj Kang
Senior Partner

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John Veale

John Veale
Partner

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