First Ofcom Online Safety Act investigation launched

The regulator said today that it is investigating whether the platform, which it did not name, had failed to comply with its obligations to put in place appropriate measures to protect users from illegal content and activity, carry out a suitable harms risk assessment, and properly respond to a statutory information request.

“We have made several attempts to engage with this service provider in respect of its duties under the act and issued a legally binding request to submit the record of its illegal harms risk assessment to us,” Ofcom said in a statement.

“Having received a limited response to our request, and unsatisfactory information about the steps being taken to protect UK users from illegal content, we have today launched an investigation into whether the provider is complying with its legal obligations under the act.”

All user-to-user and and search services under the Online Safety Act had a 16 March deadline to submit an illegal content risk assessment, taking into account the risks of users encountering illegal content on the platform. 

Intentionally encouraging or assisting the suicide of another person is a crime under the Suicide Act 1961. It is also one of more than 130 ‘priority offences’ under the Online Safety Act, alongside others including terrorism, human trafficking and fraud.

“Ofcom's latest investigation under the OSA into an online suicide forum shows through action that it is prepared to scrutinise platforms and ready to enforce against non-compliance, even where the duties have only very recently come into effect,” said Elle Todd, a partner at Reed Smith. “It is clearly also meant as a deliberate signal to others that Ofcom expects proper engagement with its processes.”

Ofcom has previously stressed its commitment to engaging with firms to help them meet requirements, noting the outreach effort carried out as part of the Video-Sharing Platforms Regime as a model. But the regulator has also said that it will not shy away from taking enforcement action both as a means of addressing non-compliant behaviour and as a way of sending a signal to the rest of the industry.

The investigation also gives credence to Ofcom’s stated focus on “small but risky” services, after UK lawmakers expressed concern that the threshold conditions for different providers might not properly address the danger posed by platforms with relatively few users.

“It may be that things move quite quickly, as Ofcom is likely keen to demonstrate that it is a force to be reckoned with in these early days of exercising its new powers,” said Faye Harrison, of counsel at Bristows.

“However, enforcing its decision could be challenging for Ofcom in practice, as there are suggestions that the parties running the unnamed forum are anonymous and that it may also be hosted in the US.”