Legalize / United Kingdom / Public General Act

Online Safety Act 2023

Type Public General Act

Publication 2023-10-26

Last updated 2026-04-07

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(b) amend paragraph 37 in connection with any such amendment.

39

The Secretary of State must consult OFCOM before making regulations under paragraph 38.

40

In the application of Part 2 of this Schedule to a combined service, references to statements of policies and procedures include references to provisions of the terms of service which relate to the search engine.

41

(1) For the purposes of this Schedule, content of a particular kind is “relevant content” if—

(a) a term of service, other than a term of service within sub-paragraph (2), indicates (in whatever words) that the presence of content of that kind is prohibited on the service or that users’ access to content of that kind is restricted, and

(b) it is regulated user-generated content.

(2) The terms of service within this sub-paragraph are as follows—

(a) terms of service which make provision of the kind mentioned in section 10(5) (protecting individuals from illegal content) or 12(9) (protecting children from content that is harmful to children);

(b) terms of service which deal with the treatment of consumer content.

(3) References in this Schedule to relevant content are to content that is relevant content in relation to the service in question.

(4) The reference in sub-paragraph (1) to users’ access to content being restricted is to be construed in accordance with sections 58 and 236(6).

42

In this Schedule—

“consumer content” has the same meaning as in Chapter 3 of Part 4 (see section 74(3));

“content that is harmful to children” has the same meaning as in Part 3 (see section 60);

“illegal content” has the same meaning as in Part 3 (see section 59);

“illegal search content” means search content that is illegal content;

“regulated user-generated content” has the same meaning as in Part 3 (see section 55), and references to such content are to content that is regulated user-generated content in relation to the service in question;

“search content” has the same meaning as in Part 3 (see section 57);

“users” means United Kingdom users (see section 227), except in paragraphs 16(a) and 32(a) where “users” means individuals in the United Kingdom who are users of a service.

SCHEDULE 9

Internal business services (entire internet service)

1

(1) An internet service, other than a user-to-user service or a search service, in relation to which the conditions in sub-paragraph (2) are met.

(2) The conditions are—

(a) the internet service is an internal resource or tool for a business, or for more than one business carried on by the same person,

(b) the person carrying on the business (or businesses) (“P”) is the provider of the internet service, and

(i) where P is an individual or individuals, that individual or those individuals,

(ii) where P is an entity, officers of P,

(iii) persons who work for P (including as employees or volunteers) for the purposes of any activities of the business (or any of the businesses) in question, and

(iv) any other persons authorised by a person within sub-paragraph (i), (ii) or (iii) to use the service for the purposes of any activities of the business (or any of the businesses) in question (for example, a contractor, consultant or auditor, or in the case of an educational institution, pupils or students).

(3) In this paragraph—

“business” includes trade, profession, educational institution or other concern (whether or not carried on for profit);

“officer” includes a director, manager, partner, associate, secretary, governor, trustee or other similar officer.

Internal business services (part of internet service)

2

(1) An internet service, other than a user-to-user service or a search service, within sub-paragraph (2).

(2) An internet service is within this sub-paragraph if—

(a) the conditions in paragraph 1(2) are met in relation to a part of the service, and

(b) no regulated provider pornographic content is published or displayed on the rest of the service.

(3) In sub-paragraph (2)(b), “the rest of the service” means all parts of the internet service other than the part in relation to which the conditions in paragraph 1(2) are met.

Services provided by public bodies

3

(1) An internet service, other than a user-to-user service or a search service, which is provided by a public body.

(2) An internet service is “provided by a public body” if—

(a) both of the following conditions are met in relation to the service—

(i) the provider of the service is a public authority within the meaning of section 6 of the Human Rights Act 1998, and

(ii) the service is provided in the exercise of public functions only,

(b) the provider of the service is Parliament, either House of Parliament, the Scottish Parliament, Senedd Cymru, the Northern Ireland Assembly or a person acting on behalf of any of those institutions,

(d) both of the following conditions are met in relation to the service—

(i) the provider of the service is an entity formed under the law of a country outside the United Kingdom, which exercises functions of a public nature, and

(ii) the service is provided in the exercise of such functions only.

(3) But an internet service is not within this paragraph if—

(a) the provider of the service is a person providing education or childcare, and

(b) the service is provided for the purposes of that education or childcare.

See paragraph 4.

(4) This paragraph is without prejudice to the fact that this Act does not apply in relation to an internet service provided by the Crown.

(5) In this paragraph, “public function” means a function that is a function of a public nature for the purposes of the Human Rights Act 1998.

Services provided by persons providing education or childcare

4

(1) An internet service, other than a user-to-user service or a search service—

(a) of which the provider is—

(i) the person with legal responsibility for education or childcare of a description listed in Part 2 of Schedule 1 (“the responsible person”), or where the responsible person is a body, a member of that body, or

(ii) a person who is employed or engaged to provide education or childcare of a description listed in Part 2 of Schedule 1, and who is subject to safeguarding duties which relate to the provision of that education or childcare, and

(b) which is provided for the purposes of that education or childcare.

(2) In sub-paragraph (1)(a)(ii), “safeguarding duties” means duties or requirements which are related to the safeguarding of children arising under enactments other than this Act, under guidance or requirements (however referred to) produced under enactments other than this Act, or as a result of contractual arrangements made by the responsible person.

(3) For the purposes of this paragraph, the person with legal responsibility for education or childcare of a particular description is the person with legal responsibility for its day-to-day provision (for example, the person with legal responsibility for a particular school), rather than any other person who has a duty to ensure that, in general, education or childcare of that description (or education or childcare which includes education or childcare of that description) is provided.

On-demand programme services (entire internet service)

5

(1) An internet service that is an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service.

(2) In this paragraph and paragraph 6, “on-demand programme service” , “non-UK on-demand programme service” and “Tier 1 service” have the same meaning as in the Communications Act (see sections 368A, 368AA and 368HA of that Act).

On-demand programme services (part of internet service)

6

(1) An internet service within sub-paragraph (2).

(2) An internet service is within this sub-paragraph if—

(a) part of the service is an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service, and

(b) no regulated provider pornographic content is published or displayed on the rest of the service.

(3) In sub-paragraph (2)(b), “the rest of the service” means all parts of the internet service other than the part which is an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service.

Interpretation

7

In this Schedule—

“education” and “childcare” have the same meaning as in Schedule 1 (see Part 3 of that Schedule);

“enactment” includes— an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978), an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament, an enactment contained in, or in an instrument made under, a Measure or Act of Senedd Cymru, and an enactment contained in, or in an instrument made under, Northern Ireland legislation;

“regulated provider pornographic content” and “published or displayed” have the same meaning as in Part 5 (see section 79).

SCHEDULE 10

Recovery of initial costs

1

(1) This Schedule concerns the recovery by OFCOM of an amount equal to the aggregate of the amounts of WTA receipts which, in accordance with section 401(1) of the Communications Act and OFCOM’s statement under that section, are retained by OFCOM for the purpose of meeting their initial costs.

(2) OFCOM must seek to recover the amount described in sub-paragraph (1) (“the total amount of OFCOM’s initial costs”) by charging providers of regulated services fees under this Schedule (“additional fees”).

(3) In this Schedule—

“initial costs” means the costs incurred by OFCOM before the first day of the initial charging year on— preparations for the exercise of their online safety functions, or the exercise of their online safety functions;

“WTA receipts” means the amounts described in section 401(1)(a) of the Communications Act which are paid to OFCOM (certain receipts under the Wireless Telegraphy Act 2006).

Recovery of initial costs: first phase

2

(1) The first phase of OFCOM’s recovery of their initial costs is to take place over a period of several charging years to be specified in regulations under paragraph 7 (“specified charging years”).

(2) Over that period OFCOM must, in aggregate, charge providers of regulated services additional fees of an amount equal to the total amount of OFCOM’s initial costs.

(3) OFCOM may not charge providers additional fees in respect of any charging year which falls before the first specified charging year.

(4) OFCOM may require a provider to pay an additional fee in respect of a charging year only if the provider is required to pay a fee in respect of that year under section 84 (and references in this Schedule to charging providers are to be read accordingly).

(5) The amount of an additional fee payable by a provider is to be calculated in accordance with regulations under paragraph 7.

Further recovery of initial costs

3

(1) The second phase of OFCOM’s recovery of their initial costs begins after the end of the last of the specified charging years.

(2) As soon as reasonably practicable after the end of the last of the specified charging years, OFCOM must publish a statement specifying—

(a) the amount which is at that time the recoverable amount (see paragraph 6), and

(b) the amounts of the variables involved in the calculation of the recoverable amount.

(3) OFCOM’s statement must also specify the amount which is equal to that portion of the recoverable amount which is not likely to be paid or recovered.

The amount so specified is referred to in sub-paragraphs (4) and (5) as “the outstanding amount”.

(4) Unless a determination is made as mentioned in sub-paragraph (5), OFCOM must, in aggregate, charge providers of regulated services additional fees of an amount equal to the outstanding amount.

(5) The Secretary of State may, as soon as reasonably practicable after the publication of OFCOM’s statement, make a determination specifying an amount by which the outstanding amount is to be reduced, and in that case OFCOM must, in aggregate, charge providers of regulated services additional fees of an amount equal to the difference between the outstanding amount and the amount specified in the determination.

(6) Additional fees mentioned in sub-paragraph (4) or (5) must be charged in respect of the charging year immediately following the last of the specified charging years (“year 1”).

(7) The process set out in sub-paragraphs (2) to (6) is to be repeated in successive charging years, applying those sub-paragraphs as if—

(a) in sub-paragraph (2), the reference to the end of the last of the specified charging years were to the end of year 1 (and so on for successive charging years);

(b) in sub-paragraph (6), the reference to year 1 were to the charging year immediately following year 1 (and so on for successive charging years).

(8) Any determination by the Secretary of State under this paragraph must be published in such manner as the Secretary of State considers appropriate.

(9) Sub-paragraphs (4) and (5) of paragraph 2 apply to the charging of additional fees under this paragraph as they apply to the charging of additional fees under that paragraph.

(10) The process set out in this paragraph comes to an end in accordance with paragraph 4.

End of the recovery process

4

(1) The process set out in paragraph 3 comes to an end if a statement by OFCOM under that paragraph records that—

(a) the recoverable amount is nil, or

(b) all of the recoverable amount is likely to be paid or recovered.

(2) Or the Secretary of State may bring that process to an end by making a determination that OFCOM are not to embark on another round of charging providers of regulated services additional fees.

(3) The earliest time when such a determination may be made is after the publication of OFCOM’s first statement under paragraph 3.

(4) A determination under sub-paragraph (2)—

(a) must be made as soon as reasonably practicable after the publication of a statement by OFCOM under paragraph 3;

(b) must be published in such manner as the Secretary of State considers appropriate.

(5) A determination under sub-paragraph (2) does not affect OFCOM’s power—

(a) to bring proceedings for the recovery of the whole or part of an additional fee for which a provider became liable at any time before the determination was made, or

(b) to act in accordance with the procedure set out in section 141 in relation to such a liability.

Providers for part of a year only

5

(1) For the purposes of this Schedule, the “provider” of a regulated service, in relation to a charging year, includes a person who is the provider of the service for part of the year.

(2) Where a person is the provider of a regulated service for part of a charging year only, OFCOM may refund all or part of an additional fee paid to OFCOM under paragraph 2 or 3 by that provider in respect of that year.

Calculation of the recoverable amount

6

For the purposes of a statement by OFCOM under paragraph 3, the “recoverable amount” is given by the formula—

$$C-(F-R)-D$ where— C is the total amount of OFCOM’s initial costs, F is the aggregate amount of the additional fees received by OFCOM at the time of the statement in question, R is the aggregate amount of the additional fees received by OFCOM that at the time of the statement in question have been, or are due to be, refunded (see paragraph 5(2)), and D is the amount specified in a determination made by the Secretary of State under paragraph 3 (see paragraph 3(5)) at a time before the statement in question or, where more than one such determination has been made, the sum of the amounts specified in those determinations.$

Regulations about recovery of initial costs

7

(1) The Secretary of State must make regulations making such provision as the Secretary of State considers appropriate in connection with the recovery by OFCOM of their initial costs.

(2) The regulations must include provision as set out in sub-paragraphs (3), (4) and (6).

(3) The regulations must specify the total amount of OFCOM’s initial costs.

(4) For the purposes of paragraph 2, the regulations must specify—

(a) the charging years in respect of which additional fees are to be charged, and

(b) the proportion of the total amount of initial costs which OFCOM must seek to recover in each of the specified charging years.

(5) The following rules apply to provision made in accordance with sub-paragraph (4)(a)—

(a) the initial charging year may not be specified;

(b) only consecutive charging years may be specified;

(d) no more than five charging years may be specified.

(6) The regulations must specify the computation model that OFCOM must use to calculate fees payable by individual providers of regulated services under paragraphs 2 and 3 (and that computation model may be different for different charging years).

(7) The regulations may make provision about what OFCOM may or must do if the operation of this Schedule results in them recovering more than the total amount of their initial costs.

(8) The regulations may amend this Schedule or provide for its application with modifications in particular cases.

(9) Before making regulations under this paragraph, the Secretary of State must consult—

(a) OFCOM,

(b) providers of regulated user-to-user services,

(d) providers of internet services within section 80(2), and

(e) such other persons as the Secretary of State considers appropriate.

Interpretation

8

In this Schedule—

“additional fees” means fees chargeable under this Schedule in respect of the recovery of OFCOM’s initial costs;

“charging year” has the meaning given by section 90;

“initial charging year” has the meaning given by section 90;

“initial costs” has the meaning given by paragraph 1(3), and the “total amount” of initial costs means the amount described in paragraph 1(1);

“recoverable amount” has the meaning given by paragraph 6;

“specified charging year” means a charging year specified in regulations under paragraph 7 for the purposes of paragraph 2.

SCHEDULE 11

Regulations specifying threshold conditions for categories of Part 3 services

1

(1) The Secretary of State must make regulations specifying conditions (“Category 1 threshold conditions”) for the user-to-user part of regulated user-to-user services relating to each of the following—

(a) number of users of the user-to-user part of the service,

(b) functionalities of that part of the service, and

(c) any other characteristics of that part of the service or factors relating to that part of the service that the Secretary of State considers relevant.

(2) The Secretary of State must make regulations specifying conditions (“Category 2A threshold conditions”) for the search engine of regulated search services and combined services relating to each of the following—

(a) number of users of the search engine, and

(b) any other characteristics of the search engine or factors relating to the search engine that the Secretary of State considers relevant.

(3) The Secretary of State must make regulations specifying conditions (“Category 2B threshold conditions”) for the user-to-user part of regulated user-to-user services relating to each of the following—

(a) number of users of the user-to-user part of the service,

(b) functionalities of that part of the service, and

(c) any other characteristics of that part of the service or factors relating to that part of the service that the Secretary of State considers relevant.

(4) Regulations under this paragraph must specify the way or ways in which the relevant threshold conditions may be met, and that may be by meeting the conditions in any specified combination, subject to the rule that—

(a) in relation to the Category 1 threshold conditions and the Category 2B threshold conditions, at least one specified condition about number of users or functionality must be met, and

(b) in relation to the Category 2A threshold conditions, at least one specified condition about number of users must be met.

(5) In making regulations under sub-paragraph (1), the Secretary of State must take into account the likely impact of the number of users of the user-to-user part of the service, and its functionalities, on how easily, quickly and widely regulated user-generated content is disseminated by means of the service.

(6) In making regulations under sub-paragraph (2), the Secretary of State must take into account the likely impact of the number of users of the search engine on the level of risk of harm to individuals from search content that is illegal content or search content that is harmful to children.

(7) In making regulations under sub-paragraph (3), the Secretary of State must take into account the likely impact of the number of users of the user-to-user part of the service, and its functionalities, on the level of risk of harm to individuals from illegal content and content that is harmful to children disseminated by means of the service.

(8) In this paragraph “specified” means specified in the regulations.

Procedure for first regulations under paragraph 1

2

(1) This paragraph describes the procedure that must be followed in relation to the making of the first regulations under each of sub-paragraphs (1), (2) and (3) of paragraph 1.

(2) In the case of regulations under paragraph 1(1), within the period of six months beginning with the day on which this Act is passed, OFCOM must carry out research into—

(a) how easily, quickly and widely regulated user-generated content is disseminated by means of regulated user-to-user services,

(b) the number of users and functionalities of the user-to-user part of such services, and

(c) such other characteristics of that part of such services or factors relating to that part of such services as OFCOM consider to be relevant to specifying the Category 1 threshold conditions.

(3) In the case of regulations under paragraph 1(2), within the period of six months beginning with the day on which this Act is passed, OFCOM must carry out research into the following aspects of the search engine of regulated search services and combined services—

(a) the prevalence of search content that is illegal content and search content that is harmful to children,

(b) the number of users of the search engine, and

(c) such other characteristics or factors as OFCOM consider to be relevant to specifying the Category 2A threshold conditions.

(4) In the case of regulations under paragraph 1(3), within the period of six months beginning with the day on which this Act is passed, OFCOM must carry out research into—

(a) the dissemination of illegal content and content that is harmful to children by means of regulated user-to-user services,

(b) the number of users and functionalities of the user-to-user part of such services, and

(c) such other characteristics of that part of such services or factors relating to that part of such services as OFCOM consider to be relevant to specifying the Category 2B threshold conditions.

(5) OFCOM must provide the Secretary of State with advice based on the research under sub-paragraph (2), (3) or (4) (as the case may be) as to the provision which OFCOM consider it is appropriate for the regulations in question to make.

(6) Such advice may include advice that the regulations should include another characteristic or factor in addition to number of users and (in the case of regulations under paragraph 1(1) or (3)) functionalities, and what that other characteristic or factor should be.

(7) As soon as reasonably practicable after OFCOM provide advice as mentioned in sub-paragraph (5)—

(a) OFCOM must publish the advice, and

(b) the Secretary of State must make the regulations.

(8) If the regulations include provision which differs in any material respect from provision advised by OFCOM, the Secretary of State must publish a statement which explains why the Secretary of State has departed from that advice.

(9) A statement mentioned in sub-paragraph (8) must be published—

(a) no later than the time at which the regulations to which the statement relates are made, and

(b) in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons who may be affected by it.

(10) The Secretary of State may give OFCOM extra time to carry out their research in the case of regulations under paragraph 1(2) or (3), but OFCOM must carry out such research within the period of 18 months beginning with the day on which this Act is passed.

(11) The Secretary of State may not make regulations under paragraph 1 until OFCOM have carried out research and provided advice to the Secretary of State as required by this paragraph.

Procedure for amending or replacing regulations under paragraph 1

3

(1) Regulations in force under paragraph 1(1) may not be amended or replaced by further regulations under that provision except following further research carried out by OFCOM into the matters mentioned in paragraph 2(2).

(2) Regulations in force under paragraph 1(2) may not be amended or replaced by further regulations under that provision except following further research carried out by OFCOM into the matters mentioned in paragraph 2(3).

(3) Regulations in force under paragraph 1(3) may not be amended or replaced by further regulations under that provision except following further research carried out by OFCOM into the matters mentioned in paragraph 2(4).

(4) The further research in question—

(a) may be initiated by OFCOM or carried out in response to a request from the Secretary of State, and

(b) may be in as much depth as OFCOM consider appropriate.

(5) A request from the Secretary of State to OFCOM to carry out further research must indicate why the Secretary of State considers that to be necessary.

(6) Where such research is carried out, OFCOM must provide the Secretary of State with advice as to whether, in OFCOM’s opinion—

(a) it is appropriate to make changes to the regulations in question, specifying the changes that OFCOM recommend, or

(b) it is not appropriate to make any changes to the regulations in question.

(7) OFCOM must publish such advice as soon as reasonably practicable after providing it to the Secretary of State.

(8) Where, following such advice, regulations are amended or replaced by further regulations under the provision in question (“new regulations”)—

(a) if the new regulations include provision which differs in any material respect from provision advised by OFCOM, the Secretary of State must publish a statement explaining the departures from that advice;

(b) if OFCOM’s advice was as mentioned in sub-paragraph (6)(b), the Secretary of State must publish a statement explaining the reasons for the new regulations.

(9) Where OFCOM’s advice is as mentioned in sub-paragraph (6)(a) and the Secretary of State does not make new regulations, the Secretary of State must, as soon as reasonably practicable, publish a statement explaining that decision.

(10) A statement mentioned in sub-paragraph (8) must be published no later than the time at which the regulations to which the statement relates are made.

(11) A statement mentioned in sub-paragraph (8) or (9) 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) Sub-paragraphs (1) to (3) do not apply to regulations made only for the purpose of correcting existing regulations under paragraph 1.

Publication of OFCOM’s advice under paragraphs 2 and 3

4

(1) In arranging for the publication of advice under paragraph 2(7)(a) or 3(7), OFCOM must have regard to the need to exclude from publication, so far as that is practicable, matters which are confidential in accordance with sub-paragraphs (2) and (3).

(2) A matter is confidential under this sub-paragraph 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.

(3) A matter is confidential under this sub-paragraph 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.

Interpretation

5

References in this Schedule to the number of users of a user-to-user part of a service or a search engine are to the number of United Kingdom users of such a part or search engine.

6

In this Schedule the “characteristics” of a user-to-user part of a service or a search engine include its user base, business model, governance and other systems and processes.

7

In this Schedule—

“content that is harmful to children” has the same meaning as in Part 3 (see section 60);

“illegal content” has the same meaning as in Part 3 (see section 59);

“regulated user-generated content” has the same meaning as in Part 3 (see section 55);

“search content” has the same meaning as in Part 3 (see section 57).

SCHEDULE 12

Authorised persons

1

(1) OFCOM may authorise persons to—

(a) exercise powers of entry and inspection under paragraph 2;

(b) carry out audits in accordance with notices under paragraph 4;

(2) “Authorised person” means—

(a) in paragraph 2, a person authorised for the purposes mentioned in sub-paragraph (1)(a);

(b) in paragraph 4, a person authorised for the purposes mentioned in sub-paragraph (1)(b);

(3) An authorisation under this paragraph must be in writing.

Power of entry and inspection without a warrant

2

(1) The powers conferred by this paragraph may be exercised in relation to premises only if OFCOM—

(a) believe that the premises are being used by the provider of a regulated service in connection with the provision of a regulated service, and

(b) have given the occupier of the premises seven days’ notice that they propose to exercise the powers.

(2) The powers conferred by this paragraph must be exercised at a reasonable hour.

(3) Before exercising a power of entry under this paragraph, an authorised person must, if requested to do so by a person on the premises—

(a) produce evidence of the authorised person’s identity, and

(b) outline the purpose for which the power is exercised.

(4) An authorised person may—

(a) enter the premises,

(b) inspect the premises,

(d) inspect any document or equipment found on the premises,

(e) require any person on the premises to provide any information, or produce any document in the person’s possession or control, that the authorised person considers is relevant to the provision of the regulated service, and

(f) require any person on the premises to provide an explanation of any document or to state where it may be found.

(5) The power to observe the carrying on of the regulated service at the premises includes the power to view, using equipment or a device on the premises, information generated in real time by the performance of a test or demonstration required by a notice given under paragraph 3.

(6) An authorised person may take copies of any document found or produced under sub-paragraph (4).

(7) An authorised person may exercise powers conferred by this paragraph only so far as is required in connection with the exercise by OFCOM of their functions under this Act.

Notice requiring information, documents or tests at inspection

3

(1) This paragraph applies where OFCOM intend to exercise the powers conferred by paragraph 2 to enter and inspect premises.

(2) OFCOM may give the occupier of the premises a notice requiring relevant information to be provided, relevant documents to be produced, or a relevant test or demonstration to be performed, during the inspection.

(3) Any such notice must be given at least seven days in advance of the proposed inspection date.

(4) For the purposes of this paragraph, information or a document, test or demonstration is “relevant” if it is required in connection with the exercise by OFCOM of their functions under this Act.

(5) A notice under this paragraph must—

(a) specify or describe the information to be provided, the documents to be produced, or the test or demonstration to be performed, during the inspection, and

(b) contain information about the consequences of not complying with the notice.

Audit

4

(1) OFCOM may give the provider of a regulated service a notice (an “audit notice”) requiring the provider to permit OFCOM to carry out an audit—

(a) to assess whether the provider has complied or is complying with enforceable requirements that apply in respect of the service, or

(b) to assess—

(i) the nature and level of risk of the provider failing to comply with an enforceable requirement that applies in respect of the service, and

(ii) ways to mitigate such a risk.

(2) An audit notice may require the provider to take any of the following actions for a purpose mentioned in sub-paragraph (1)—

(a) to permit an authorised person to enter and inspect specified premises;

(b) to permit an authorised person to observe the carrying on of the regulated service at the premises;

(d) to assist an authorised person to view information of a specified description that is capable of being viewed using equipment or a device on the premises;

(e) to assist an authorised person to view, using equipment or a device on the premises, information demonstrating in real time the operation of systems, processes or features of a specified description, including functionalities or algorithms of a specified description;

(f) to assist an authorised person to view, using equipment or a device on the premises, information generated in real time by the performance of a test or demonstration of a specified description;

(g) to comply with a request from an authorised person for a copy (in such form as may be requested) of the documents or information to which the person is directed or which the person is assisted to view;

(h) to permit an authorised person to inspect the documents, information or equipment to which the person is directed or which the person is assisted to view;

(i) to provide an authorised person with an explanation of such documents or information;

(j) to make available for interview by the authorised person a specified number of people of a specified description who are involved in the provision of the regulated service (not exceeding the number who are willing to be interviewed).

(3) An audit notice—

(a) must be given at least 28 days in advance of the start of the audit, and

(b) must specify the time or times at which, or period or periods within which, each requirement imposed by the notice must be complied with.

(4) An audit notice may not require a provider to permit an authorised person to enter domestic premises.

(5) An audit notice may not require a provider to do anything that would result in the disclosure of information or documents in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings.

(6) An audit notice must contain information about the consequences of not complying with the requirements which it imposes.

(7) An audit notice may by further notice—

(a) be revoked by OFCOM;

(b) be varied by OFCOM so as to make it less onerous.

(8) OFCOM may require a provider to pay some or all of the reasonable costs of an audit carried out in accordance with an audit notice.

(9) If OFCOM require a provider to pay an amount as mentioned in sub-paragraph (8), paragraph 6 of Schedule 13 applies in relation to the amount as it applies in relation to a penalty within the meaning of that Schedule.

(10) In this paragraph “specified” means specified in an audit notice.

Conditions for issue of a warrant

5

(1) A justice of the peace or (in Northern Ireland) a lay magistrate may issue a warrant in relation to premises specified in an application only if satisfied on sworn information in writing given by an authorised person that—

(a) the premises are being used by the provider of a regulated service in connection with the provision of a regulated service;

(b) there are reasonable grounds to suspect that—

(i) the provider is failing to comply, or has failed to comply, with an enforceable requirement that applies in respect of that service, and

(ii) there is information or equipment on the premises, or there are documents on the premises, relevant to OFCOM’s investigation into that failure (or possible failure); and

(2) The conditions are that, in relation to the premises specified in the application for a warrant—

(a) OFCOM have previously given notice to enter the premises, as required in relation to entry without a warrant under paragraph 2, but a person authorised by OFCOM to exercise powers under that paragraph was denied access,

(b) a requirement imposed by a person acting in the exercise of powers conferred by paragraph 2 has not been complied with,

(d) a requirement of a notice under paragraph 4 (audit notice) has not been complied with,

(e) giving notice to enter the premises would defeat the object of entry, or

(f) OFCOM require access to the premises urgently.

Evidence of authority

6

(1) Before exercising a power of entry under a warrant, an authorised person must—

(a) produce a copy of the warrant,

(b) supply the occupier (if present), or any other person appearing to the authorised person to be in charge of the premises, with a copy of the warrant, and

(i) produce evidence of the authorised person’s identity, and

(ii) outline the purpose for which the power is exercised.

(2) If neither the occupier nor any other person appearing to the authorised person to be in charge of the premises is present, the authorised person must leave a copy of the warrant in a prominent place on the premises.

Powers exercisable by warrant

7

An authorised person executing a warrant may do any of the following for the purposes of OFCOM’s investigation into whether there is, or has been, a failure referred to in paragraph 5(1)(b)(i)—

(a) enter the premises specified in the warrant;

(b) search the premises;

(c) inspect any documents or equipment found on the premises, or any information capable of being viewed using equipment or a device on the premises;

(d) require any person on the premises to provide information, including requiring an explanation of any document found on the premises or any information capable of being viewed using equipment or a device on the premises;

(e) require any person on the premises to produce any document in the person’s possession or control;

(f) take copies of any document found on the premises or produced in response to a requirement under paragraph (e);

(g) require information which is stored in electronic form and may be accessed from the premises to be produced in a form in which it can be taken away and in which it is visible and legible (or from which it can readily be produced in a visible and legible form);

(h) operate any equipment found on the premises for the purposes of producing such information in such a form;

(i) require any person on the premises to give the authorised person any assistance that the authorised person may reasonably require (including for the purposes of paragraphs (g) and (h));

(j) take copies of anything produced in accordance with paragraph (g);

(k) seize any document found on the premises or produced in response to a requirement under paragraph (e), or anything produced in accordance with paragraph (g), or any equipment found on the premises;

(l) open any container found on the premises;

(m) take a photograph or video recording of anything found on the premises.

Powers of seizure: supplementary

8

(1) This paragraph applies where the person executing a warrant seizes a document or other thing.

(2) The person must, on request—

(a) give a receipt for it, and

(b) (in the case of a document) give an occupier of the premises a copy of it.

(3) Sub-paragraph (2)(b) does not apply if the person executing the warrant considers that providing a copy would result in undue delay.

(4) Anything seized may be retained for so long as is necessary in all the circumstances.

Further provision about executing warrants

9

Entry and search under a warrant must be at a reasonable hour, unless it appears to the person executing it that the purpose of a search would be frustrated or seriously prejudiced by entry at a reasonable hour.

10

Entry and search under a warrant must be within the period of one month starting with the date of its issue.

11

An authorised person executing a warrant may take such other persons and such equipment and materials onto the premises as appear to that person to be necessary.

12

A person taken on to the premises under paragraph 11 may exercise any power conferred on an authorised person by paragraph 7 if the person is in the company and under the supervision of an authorised person executing a warrant.

13

An authorised person may use reasonable force, if necessary, for the purpose of exercising a power under a warrant.

14

A warrant authorises entry on one occasion only, unless it specifies that it authorises multiple entries.

15

If the premises are unoccupied or the occupier is temporarily absent, an authorised person executing a warrant must leave the premises as effectively secured against trespassers as that person found them.

Return of warrants

16

(1) Where a warrant is executed—

(a) it must be returned to the appropriate person (see sub-paragraph (3)) after being executed, and

(b) the person by whom it is executed must write on the warrant a statement of the powers that have been exercised under the warrant.

(2) Where a warrant is not executed, it must be returned to the appropriate person within the time authorised for its execution.

(3) The appropriate person is—

(a) in the case of a warrant issued in England and Wales, the designated officer for the local justice area in which the justice of the peace was acting when issuing the warrant;

(b) in the case of a warrant issued in Scotland, the clerk of the justice of the peace court;

(4) The appropriate person must retain a search warrant returned under sub-paragraph (1) or (2) until the end of the period of 12 months starting with the date of its return.

(5) If during that period the occupier of premises to which the warrant relates asks to inspect it, the occupier must be allowed to do so.

Restrictions on powers

17

(1) This paragraph applies in relation to—

(a) powers conferred by paragraph 2 (entry and inspection without warrant), and

(b) powers exercisable under a warrant.

(2) Those powers are not exercisable in respect of domestic premises.

(3) Those powers are not exercisable in relation to information or documents in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings.

Offences

18

(1) A person commits an offence if—

(a) the person intentionally obstructs a person acting under this Schedule;

(b) the person fails, without reasonable excuse, to comply with any requirement imposed by a person acting under this Schedule;

(c) in response to a requirement imposed by a person acting under this Schedule, the person provides information that is false in a material respect, knowing that it is false in a material respect or being reckless as to whether it is false in a material respect.

(2) A person who commits an offence under this paragraph is liable—

(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);

(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).

Interpretation

19

In this Schedule—

“domestic premises” means premises, or a part of premises, used as a dwelling;

“premises” means premises in the United Kingdom.

20

References in this Schedule to a person “acting under this Schedule” are to a person acting—

(a) in the exercise of powers conferred by paragraph 2 (entry and inspection without warrant), or

(b) in the execution of a warrant,

and the reference in paragraph 18(1)(a) also includes a person carrying out an audit in accordance with an audit notice.

21

In this Schedule “enforceable requirement” has the same meaning as in Chapter 6 of Part 7 (see section 131), except that—

(a) it does not include—

(i) a requirement under (or a requirement of a notice under) section 104 (reports by skilled persons), or

(ii) a requirement imposed by a person acting under this Schedule;

(b) it includes a requirement imposed by a notice under section 121(1) (notices to deal with terrorism content and CSEA content).

22

In paragraphs 6 to 17 and 20 “warrant” means a warrant issued under paragraph 5.

23

In the application of paragraph 5(1) to Scotland, the reference to sworn information in writing has effect as a reference to evidence on oath.

24

In the application of paragraph 5(1) to Northern Ireland, the reference to sworn information in writing has effect as a reference to a complaint on oath.

SCHEDULE 13

Meaning of “penalty” in this Schedule

1

Except as otherwise indicated, references in this Schedule to a “penalty” are to any of the following—

(a) a penalty imposed by a confirmation decision (see sections 132(5)(b) and 137), whether that is—

(i) a penalty of a single amount, or

(ii) a penalty calculated by reference to a daily rate;

(b) a penalty imposed by a penalty notice under section 139;

(d) a penalty imposed by a penalty notice under section 141(6).

Amount of penalties: principles

2

(1) In determining the amount of a penalty to be imposed on a person, OFCOM must, in particular, take into account—

(a) any representations made, and evidence provided, by the person, and

(b) the effects of the failure (or failures) in respect of which the penalty is imposed.

(2) In the case of a penalty imposed by a confirmation decision, OFCOM must also take into account any representations made, and evidence provided, by any other person to whom the earlier provisional notice of contravention relating to the same matter was given.

(3) OFCOM must also take into account—

(a) in the case of a penalty imposed by a confirmation decision, any steps taken by the person towards—

(i) complying with any duty or requirement specified in the provisional notice of contravention given to the person, or

(ii) remedying the failure to comply with any such duty or requirement;

(b) in the case of a penalty imposed by a penalty notice under section 139, any steps taken by the person towards—

(i) complying with any duty or requirement specified in the confirmation decision given to the person, or

(ii) remedying the failure to comply with any such duty or requirement;

(c) in the case of a penalty imposed by a penalty notice under section 140(5), any steps taken by the person towards complying with the notice under section 121(1);

(d) in the case of a penalty imposed by a penalty notice under section 141(6), any steps taken by the person towards paying any amount of the fee due to OFCOM.

(4) A penalty must be of an amount that OFCOM consider to be—

(a) appropriate, and

(b) proportionate to the failure (or failures) in respect of which it is imposed.

(5) See also section 392 of the Communications Act (which requires OFCOM to produce guidelines about their determination of the amount of penalties that they impose).

Limitation to type and amount of penalties previously proposed

3

(1) A confirmation decision or penalty notice may not impose a penalty of a different kind, of a greater amount or (in the case of a penalty calculated by reference to a daily rate) payable over a longer period than that proposed in the earlier notice in relation to the same matter.

(2) Sub-paragraph (1) applies in a case where a provisional notice of contravention and confirmation decision in relation to the same matter are both given jointly (in accordance with Schedule 15) to the same entities, but does not otherwise apply in relation to a penalty for which two or more entities are jointly and severally liable.

(3) In this paragraph “penalty notice” means a penalty notice under section 139, 140(5) or 141(6).

Maximum amount of penalties

4

(1) Where a penalty is imposed on a person in respect of a regulated service provided by that person, the maximum amount of the penalty for which the person is liable is whichever is the greater of—

(a) £18 million, and

(b) 10% of the person’s qualifying worldwide revenue for the person’s most recent complete accounting period (subject to sub-paragraph (5)).

(2) But if the person does not have an accounting period, the maximum amount of the penalty for which the person is liable is £18 million.

(3) The maximum amount of a penalty for which a person not within sub-paragraph (1) is liable is £18 million.

(4) If the person’s first accounting period has not yet ended, sub-paragraph (1)(b) is to be read as referring to 10% of the amount that OFCOM estimate to be the person’s likely qualifying worldwide revenue for that period.

(5) If the duration of the accounting period by reference to which an amount of qualifying worldwide revenue is calculated is less than a year, the amount mentioned in sub-paragraph (1)(b) is to be proportionately increased.

If the duration of that accounting period is more than a year, that amount is to be proportionately reduced.

(6) The amount of a person’s qualifying worldwide revenue for an accounting period is, in the event of a disagreement between the person and OFCOM, the amount determined by OFCOM.

(7) In the case of a confirmation decision that imposes a penalty of a single amount and a penalty calculated by reference to a daily rate, references in sub-paragraphs (1) to (3) to the maximum amount for which a person is liable are to the maximum amount of both those penalties taken together.

(8) In this paragraph “accounting period”, in relation to a person, means a period in respect of which accounts are prepared in relation to that person or, where that person is an individual, in respect of that individual’s business of providing a regulated service.

(9) Regulations made by OFCOM under section 85(1)(a) (including regulations making provision of a kind mentioned in section 85(3), (4) or (5)) apply for the purpose of determining the qualifying worldwide revenue of a provider of a regulated service for an accounting period as mentioned in this paragraph as they apply for the purpose of determining the qualifying worldwide revenue of a provider of a regulated service for a qualifying period for the purposes of Part 6.

Maximum amount of penalties: group of entities

5

(1) This paragraph contains modifications of paragraph 4 in a case where, in accordance with Schedule 15, two or more entities are jointly and severally liable for a penalty.

(2) Sub-paragraphs (3) to (5) of this paragraph apply instead of paragraph 4(1) to (4).

(3) The maximum amount of the penalty for which the entities are liable is whichever is the greater of—

(a) £18 million, and

(b) 10% of the qualifying worldwide revenue of the group of entities that consists of—

(i) the entity that is the provider of the regulated service to which the decision or notice in question relates (“entity E”), and

(ii) every other entity which (at the time the decision or notice is given) is a group undertaking in relation to entity E.

(4) In sub-paragraph (3)(b), the reference to the qualifying worldwide revenue of a group of entities is to—

(a) the amount of the group’s qualifying worldwide revenue for the most recent complete accounting period of the entities liable for the penalty, or

(b) if the first accounting period of the entities liable for the penalty has not yet ended, the amount that OFCOM estimate to be the group’s likely qualifying worldwide revenue for that period.

(5) In a case where the accounting periods of the entities liable for the penalty are different—

(a) the reference in sub-paragraph (4)(a) to the accounting period of the entities is to be read as a reference to the accounting period of any of the entities (at OFCOM’s discretion), and

(b) sub-paragraph (4)(b) is to apply as if—

(i) for “the first accounting period of the entities” there were substituted “the first accounting period of all of the entities”, and

(ii) for “that period” there were substituted “the accounting period of any of the entities (at OFCOM’s discretion)”.

(6) Sub-paragraphs (5), (6) and (7) of paragraph 4 are to be read with the necessary modifications in their application for the purposes of this paragraph.

(7) In this paragraph—

“accounting period”, in relation to an entity, means a period in respect of which accounts are prepared in relation to that entity;

“group undertaking” has the meaning given by section 1161(5) of the Companies Act 2006.

(8) For the purposes of this paragraph, sections 1161(5) and 1162 of, and Schedule 7 to, the Companies Act 2006—

(a) are to apply in relation to an entity which is not an undertaking (as defined in section 1161(1) of that Act) as they apply in relation to an undertaking, and

(b) are to be read with any necessary modifications if applied to an entity formed under the law of a country outside the United Kingdom.

(9) OFCOM may by regulations make provision about how the qualifying worldwide revenue of a group of entities is to be determined for the purposes of this paragraph.

(10) Before making regulations under sub-paragraph (9) OFCOM must consult—

(a) the Secretary of State,

(b) the Treasury, and

(11) Regulations under sub-paragraph (9) may make provision subject to such exemptions and exceptions as OFCOM consider appropriate.

Recovery of penalties

6

(1) In England and Wales, a penalty is recoverable—

(a) if the county court so orders, as if it were payable under an order of that court;

(b) if the High Court so orders, as if it were payable under an order of that court.

(2) In Scotland, a penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(3) In Northern Ireland, a penalty is recoverable—

(a) if a county court so orders, as if it were payable under an order of that court;

(b) if the High Court so orders, as if it were payable under an order of that court.

SCHEDULE 14

PART 1 — Amendments consequential on offences in sections 179, 181 and 183

Football Spectators Act 1989

1

In Schedule 1 to the Football Spectators Act 1989 (football banning orders: relevant offences), after paragraph 1(z) insert—

(z1) any offence under section 179 (false communications) or 181 (threatening communications) of the Online Safety Act 2023— (i) which does not fall within paragraph (d), (e), (m), (n), (r) or (s), (ii) as respects which the court has stated that the offence is aggravated by hostility of any of the types mentioned in section 66(1) of the Sentencing Code (racial hostility etc), and (iii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation.

Sexual Offences Act 2003

2

In Schedule 5 to the Sexual Offences Act 2003, in the list of offences for England and Wales, after paragraph 63C insert—

(63D) An offence under section 179 of the Online Safety Act 2023 (false communications). (63E) An offence under section 181 of that Act (threatening communications).

3

In Schedule 5 to the Sexual Offences Act 2003, in the list of offences for Northern Ireland, after paragraph 171H insert—

(171I) An offence under section 179 of the Online Safety Act 2023 (false communications). (171J) An offence under section 181 of that Act (threatening communications).

Regulatory Enforcement and Sanctions Act 2008

4

In Schedule 3 to the Regulatory Enforcement and Sanctions Act 2008 (relevant enactments for the purposes of relevant functions to which Parts 1 and 2 of that Act apply), at the appropriate place insert—

Online Safety Act 2023, sections 179 and 181

Elections Act 2022

5

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