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

(1) This section sets out the record-keeping and review duties which apply in relation to regulated user-to-user services (as indicated by the headings).

All services 2 A duty to make and keep a written record, in an easily understandable form, of all aspects of every risk assessment under section 9 or 11, including details about how the assessment was carried out and its findings. 3 A duty to make and keep a written record of any measures taken or in use to comply with a relevant duty which— a are described in a code of practice and recommended for the purpose of compliance with the duty in question, and b apply in relation to the provider and the service in question. In this section such measures are referred to as “applicable measures in a code of practice”. 4 If alternative measures have been taken or are in use to comply with a relevant duty, a duty to make and keep a written record containing the following information— a the applicable measures in a code of practice that have not been taken or are not in use, b the alternative measures that have been taken or are in use, c how those alternative measures amount to compliance with the duty in question, and d how the provider has complied with section 49(5) (freedom of expression and privacy). 5 If alternative measures have been taken or are in use to comply with a duty set out in section 10(2) or (3) or 12(2) or (3), the record required under subsection (4) of this section must also indicate whether such measures have been taken or are in use in every area listed in section 10(4) or 12(8) (as the case may be) in relation to which there are applicable measures in a code of practice. 6 A duty to review compliance with the relevant duties in relation to a service— a regularly, and b as soon as reasonably practicable after making any significant change to any aspect of the design or operation of the service. 7 OFCOM may provide that particular descriptions of providers of user-to-user services are exempt from any or all of the duties set out in this section, and may revoke such an exemption. 8 OFCOM must publish details of any exemption or revocation under subsection (7), including reasons for the revocation of an exemption.

Additional duties for Category 1 services 9 A duty to make and keep a written record, in an easily understandable form, of all aspects of every assessment under section 14 (assessments related to the adult user empowerment duty set out in section 15(2)), including details about how the assessment was carried out and its findings. 10 As soon as reasonably practicable after making a record of an assessment as required by subsection (2) or (9), or revising such a record, a duty to supply OFCOM with a copy of the record (in full).

Interpretation 11 In this section— “alternative measures” means measures other than measures which are (in relation to the provider and the service in question) applicable measures in a code of practice; “code of practice” means a code of practice published under section 46; “relevant duties” means the duties set out in— section 10 (illegal content), section 12 (children’s online safety), section 15 (user empowerment), section 17 (content of democratic importance), section 19 (journalistic content), section 20 (content reporting), and section 21 (complaints procedures), and for the purposes of subsection (6), also includes the duties set out in sections 18 (news publisher content), 71 and 72 (duties about terms of service), and 75 (deceased child users).

CHAPTER 3 — Providers of search services: duties of care

Search services: which duties apply, and scope of duties

Providers of search services: duties of care

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(1) Subsections (2) to (4) apply to determine which of the duties set out in this Chapter must be complied with by providers of regulated search services.

(2) All providers of regulated search services must comply with the following duties in relation to each such service which they provide—

(a) the duties about illegal content risk assessments set out in section 26,

(b) the duties about illegal content set out in section 27(2) to (8),

(d) the duties about complaints procedures set out in section 32,

(e) the duties about freedom of expression and privacy set out in section 33, and

(f) the duties about record-keeping and review set out in section 34(2) to (6).

(3) Additional duties must be complied with by providers of particular kinds of regulated search services, as follows.

(4) All providers of regulated search services that are likely to be accessed by children must comply with the following duties in relation to each such service which they provide—

(a) the duties about children’s risk assessments set out in section 28, and

(b) the duties to protect children’s online safety set out in section 29(2) to (8).

(5) All providers of regulated search services that are Category 2A services must comply with the following duties in relation to each such service which they provide—

(a) the duty about illegal content risk assessments set out in section 27(9),

(b) the duty about children’s risk assessments set out in section 29(9), and

(6) For the meaning of “likely to be accessed by children”, see section 37.

(7) For the meaning of “Category 2A service”, see section 95 (register of categories of services).

Scope of duties of care

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(1) A duty set out in this Chapter which must be complied with in relation to a search service extends only to—

(a) the search content of the service,

(b) the design, operation and use of the search engine in the United Kingdom, and

(c) in the case of a duty that is expressed to apply in relation to users of a service, the design, operation and use of the search engine as it affects United Kingdom users of the service.

(2) For the purposes of the application of this Chapter in relation to the search engine of a combined service (see section 7(6))—

(a) a duty set out in this Chapter which requires a matter to be included in a publicly available statement may be satisfied by including the matter in the terms of service;

(b) references in this Chapter (except in section 24) to a search service are to be read as references to the search engine;

(c) references in this Chapter (except in section 24) to the provider of a search service are to be read as references to the provider of the combined service.

Illegal content duties for search services

Illegal content risk assessment duties

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(1) This section sets out the duties about risk assessments which apply in relation to all regulated search services.

(2) A duty to carry out a suitable and sufficient illegal content risk assessment at a time set out in, or as provided by, Schedule 3.

(3) A duty to take appropriate steps to keep an illegal content risk assessment up to date, including when OFCOM make any significant change to a risk profile that relates to services of the kind in question.

(4) Before making any significant change to any aspect of a service’s design or operation, a duty to carry out a further suitable and sufficient illegal content risk assessment relating to the impacts of that proposed change.

(5) An “illegal content risk assessment” of a service of a particular kind means an assessment of the following matters, taking into account the risk profile that relates to services of that kind—

(a) the level of risk of individuals who are users of the service encountering search content of the following kinds—

(i) each kind of priority illegal content (with each kind separately assessed), and

(ii) other illegal content,

taking into account (in particular) risks presented by algorithms used by the service, and the way that the service indexes, organises and presents search results;

(b) the level of risk of functionalities of the service facilitating individuals encountering search content that is illegal content, identifying and assessing those functionalities that present higher levels of risk;

(c) the nature, and severity, of the harm that might be suffered by individuals from the matters identified in accordance with paragraphs (a) and (b);

(d) how the design and operation of the service (including the business model, governance, use of proactive technology, measures to promote users’ media literacy and safe use of the service, and other systems and processes) may reduce or increase the risks identified.

(6) In this section references to risk profiles are to the risk profiles for the time being published under section 98 which relate to the risk of harm to individuals presented by illegal content.

(7) See also—

(a) section 34(2) and (9) (records of risk assessments), and

(b) Schedule 3 (timing of providers’ assessments).

Safety duties about illegal content

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(1) This section sets out the duties about illegal content which apply in relation to regulated search services (as indicated by the headings).

All services 2 A duty, in relation to a service, to take or use proportionate measures relating to the design or operation of the service to effectively mitigate and manage the risks of harm to individuals, as identified in the most recent illegal content risk assessment of the service (see section 26(5)(c)). 3 A duty to operate a service using proportionate systems and processes designed to minimise the risk of individuals encountering search content of the following kinds— a priority illegal content; b other illegal content that the provider knows about (having been alerted to it by another person or become aware of it in any other way). 4 The duties set out in subsections (2) and (3) apply across all areas of a service, including the way the search engine is designed, operated and used as well as search content of the service, and (among other things) require the provider of a service to take or use measures in the following areas, if it is proportionate to do so— a regulatory compliance and risk management arrangements, b design of functionalities, algorithms and other features relating to the search engine, c functionalities allowing users to control the content they encounter in search results, d content prioritisation, e user support measures, and f staff policies and practices. 5 A duty to include provisions in a publicly available statement specifying how individuals are to be protected from search content that is illegal content. 6 A duty to apply the provisions of the statement referred to in subsection (5) consistently. 7 A duty to include provisions in a publicly available statement giving information about any proactive technology used by a service for the purpose of compliance with a duty set out in subsection (2) or (3) (including the kind of technology, when it is used, and how it works). 8 A duty to ensure that the provisions of the publicly available statement referred to in subsections (5) and (7) are clear and accessible.

Additional duty for Category 2A services 9 A duty to summarise in a publicly available statement the findings of the most recent illegal content risk assessment of a service (including as to levels of risk and as to nature, and severity, of potential harm to individuals).

Interpretation 10 In determining what is proportionate for the purposes of this section, the following factors, in particular, are relevant— a all the findings of the most recent illegal content risk assessment (including as to levels of risk and as to nature, and severity, of potential harm to individuals), and b the size and capacity of the provider of a service. 11 In this section “illegal content risk assessment” has the meaning given by section 26. 12 See also, in relation to duties set out in this section, section 33 (duties about freedom of expression and privacy).

Search services likely to be accessed by children

Children’s risk assessment duties

28

(1) This section sets out the duties about risk assessments which apply in relation to regulated search services that are likely to be accessed by children (in addition to the duties about risk assessments set out in section 26).

(2) A duty to carry out a suitable and sufficient children’s risk assessment at a time set out in, or as provided by, Schedule 3.

(3) A duty to take appropriate steps to keep a children’s risk assessment up to date, including when OFCOM make any significant change to a risk profile that relates to services of the kind in question.

(4) Before making any significant change to any aspect of a service’s design or operation, a duty to carry out a further suitable and sufficient children’s risk assessment relating to the impacts of that proposed change.

(5) A “children’s risk assessment” of a service of a particular kind means an assessment of the following matters, taking into account the risk profile that relates to services of that kind—

(a) the level of risk of children who are users of the service encountering search content of the following kinds—

(i) each kind of primary priority content that is harmful to children (with each kind separately assessed),

(ii) each kind of priority content that is harmful to children (with each kind separately assessed), and

(iii) non-designated content that is harmful to children,

giving separate consideration to children in different age groups, and taking into account (in particular) risks presented by algorithms used by the service and the way that the service indexes, organises and presents search results;

(b) the level of risk of children who are users of the service encountering search content that is harmful to children which particularly affects individuals with a certain characteristic or members of a certain group;

(c) the extent to which the design of the service, in particular its functionalities, affects the level of risk of harm that might be suffered by children, identifying and assessing those functionalities that present higher levels of risk, including a functionality that makes suggestions relating to users’ search requests (predictive search functionality);

(d) the different ways in which the service is used, including functionalities or other features of the service that affect how much children use the service, and the impact of such use on the level of risk of harm that might be suffered by children;

(e) the nature, and severity, of the harm that might be suffered by children from the matters identified in accordance with paragraphs (a) to (d), giving separate consideration to children in different age groups;

(f) how the design and operation of the service (including the business model, governance, use of proactive technology, measures to promote users’ media literacy and safe use of the service, and other systems and processes) may reduce or increase the risks identified.

(6) In this section references to risk profiles are to the risk profiles for the time being published under section 98 which relate to the risk of harm to children presented by content that is harmful to children.

(7) See also—

(a) section 34(2) and (9) (records of risk assessments), and

(b) Schedule 3 (timing of providers’ assessments).

Safety duties protecting children

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(1) This section sets out the duties to protect children’s online safety which apply in relation to regulated search services that are likely to be accessed by children (as indicated by the headings).

All services 2 A duty, in relation to a service, to take or use proportionate measures relating to the design or operation of the service to effectively— a mitigate and manage the risks of harm to children in different age groups, as identified in the most recent children’s risk assessment of the service (see section 28(5)(e)), and b mitigate the impact of harm to children in different age groups presented by search content that is harmful to children. 3 A duty to operate a service using proportionate systems and processes designed to— a minimise the risk of children of any age encountering search content that is primary priority content that is harmful to children; b minimise the risk of children in age groups judged to be at risk of harm from other content that is harmful to children (or from a particular kind of such content) encountering search content of that kind. 4 The duties set out in subsections (2) and (3) apply across all areas of a service, including the way the search engine is designed, operated and used as well as search content of the service, and (among other things) require the provider of a service to take or use measures in the following areas, if it is proportionate to do so— a regulatory compliance and risk management arrangements, b design of functionalities, algorithms and other features relating to the search engine, c functionalities allowing for control over content that is encountered in search results, especially by children, d content prioritisation, e user support measures, and f staff policies and practices. 5 A duty to include provisions in a publicly available statement specifying how children are to be protected from search content of the following kinds— a primary priority content that is harmful to children (with each kind of primary priority content separately covered), b priority content that is harmful to children (with each kind of priority content separately covered), and c non-designated content that is harmful to children. 6 A duty to apply the provisions of the statement referred to in subsection (5) consistently. 7 A duty to include provisions in a publicly available statement giving information about any proactive technology used by a service for the purpose of compliance with a duty set out in subsection (2) or (3) (including the kind of technology, when it is used, and how it works). 8 A duty to ensure that the provisions of the publicly available statement referred to in subsections (5) and (7) are clear and accessible.

Additional duty for Category 2A services 9 A duty to summarise in a publicly available statement the findings of the most recent children’s risk assessment of a service (including as to levels of risk and as to nature, and severity, of potential harm to children).

Safety duties protecting children: interpretation

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(1) In determining what is proportionate for the purposes of section 29, the following factors, in particular, are relevant—

(a) all the findings of the most recent children’s risk assessment (including as to levels of risk and as to nature, and severity, of potential harm to children), and

(b) the size and capacity of the provider of a service.

(2) So far as a duty set out in section 29 relates to non-designated content that is harmful to children, the duty is to be taken to extend only to addressing risks of harm from the kinds of such content that have been identified in the most recent children’s risk assessment (if any have been identified).

(3) The reference in section 29(3)(b) to children in age groups judged to be at risk of harm from content that is harmful to children is a reference to children in age groups judged to be at risk of such harm as assessed by the provider of a service in the most recent children’s risk assessment of the service.

(4) The duties set out in section 29(3) are to be taken to extend only to content that is harmful to children where the risk of harm is presented by the nature of the content (rather than the fact of its dissemination).

(5) The duties set out in section 29 extend only to such parts of a service as it is possible for children to access.

(6) For the purposes of subsection (5), a provider is only entitled to conclude that it is not possible for children to access a service, or a part of it, if age verification or age estimation is used on the service with the result that children are not normally able to access the service or that part of it.

(7) In section 29 and this section “children’s risk assessment” has the meaning given by section 28.

(8) See also, in relation to duties set out in section 29, section 33 (duties about freedom of expression and privacy).

Duties about content reporting and complaints procedures

Duty about content reporting

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(1) This section sets out the duty about content reporting which applies in relation to all regulated search services.

(2) A duty to operate a service using systems and processes that allow users and affected persons to easily report search content which they consider to be content of a kind specified below (with the duty extending to content that is harmful to children depending on the kind of service, as indicated by the headings).

All services 3 Illegal content.

Services likely to be accessed by children 4 Content that is harmful to children.

Interpretation 5 In this section “affected person” means a person, other than a user of the service in question, who is in the United Kingdom and who is— a the subject of the content, b a member of a class or group of people with a certain characteristic targeted by the content, c a parent of, or other adult with responsibility for, a child who is a user of the service or is the subject of the content, or d an adult providing assistance in using the service to another adult who requires such assistance, where that other adult is a user of the service or is the subject of the content. 6 See also, in relation to the duty set out in this section, section 33 (duties about freedom of expression and privacy).

Duties about complaints procedures

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(1) This section sets out the duties about complaints procedures which apply in relation to all regulated search services.

(2) A duty to operate a complaints procedure in relation to a service that—

(a) allows for relevant kinds of complaint to be made (as set out under the headings below),

(b) provides for appropriate action to be taken by the provider of the service in response to complaints of a relevant kind, and

(3) A duty to make the policies and processes that govern the handling and resolution of complaints of a relevant kind publicly available and easily accessible (including to children).

All services 4 The following kinds of complaint are relevant for all services— a complaints by users and affected persons about search content which they consider to be illegal content; b complaints by users and affected persons if they consider that the provider is not complying with a duty set out in— i section 27 (illegal content), ii section 31 (content reporting), or iii section 33 (freedom of expression and privacy); c complaints by an interested person if the provider of a search service takes or uses measures in order to comply with a duty set out in section 27 that result in content relating to that interested person no longer appearing in search results or being given a lower priority in search results; d complaints by an interested person if— i the use of proactive technology on a search service results in content relating to that interested person no longer appearing in search results or being given a lower priority in search results, and ii the interested person considers that the proactive technology has been used in a way not contemplated by, or in breach of, the provider’s policies on its use (for example, by affecting content not of a kind specified in those policies as a kind of content in relation to which the technology would operate).

Services likely to be accessed by children 5 The following kinds of complaint are relevant for services that are likely to be accessed by children— a complaints by users and affected persons about search content which they consider to be content that is harmful to children; b complaints by users and affected persons if they consider that the provider is not complying with a duty set out in section 29 (children’s online safety); c complaints by an interested person if the provider of a search service takes or uses measures in order to comply with a duty set out in section 29 that result in content relating to that interested person no longer appearing in search results or being given a lower priority in search results; d complaints by a user who is unable to access content because measures used to comply with a duty set out in section 29(2) or (3) have resulted in an incorrect assessment of the user’s age.

Interpretation 6 In this section— “affected person” has the meaning given by section 31; “interested person” has the meaning given by section 227(7). 7 See also, in relation to duties set out in this section, section 33 (duties about freedom of expression and privacy).

Cross-cutting duties

Duties about freedom of expression and privacy

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(1) This section sets out the duties about freedom of expression and privacy which apply in relation to all regulated search services.

(2) When deciding on, and implementing, safety measures and policies, a duty to have particular regard to the importance of protecting the rights of users and interested persons to freedom of expression within the law.

(3) When deciding on, and implementing, safety measures and policies, a duty to have particular regard to the importance of protecting users from a breach of any statutory provision or rule of law concerning privacy that is relevant to the use or operation of a search service (including, but not limited to, any such provision or rule concerning the processing of personal data).

(4) In this section—

“interested person” has the meaning given by section 227(7);

“safety measures and policies” means measures and policies designed to secure compliance with any of the duties set out in— section 27 (illegal content), section 29 (children’s online safety), section 31 (content reporting), or section 32 (complaints procedures).

Record-keeping and review duties

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(1) This section sets out the record-keeping and review duties which apply in relation to regulated search services (as indicated by the headings).

All services 2 A duty to make and keep a written record, in an easily understandable form, of all aspects of every risk assessment under section 26 or 28, including details about how the assessment was carried out and its findings. 3 A duty to make and keep a written record of any measures taken or in use to comply with a relevant duty which— a are described in a code of practice and recommended for the purpose of compliance with the duty in question, and b apply in relation to the provider and the service in question. In this section such measures are referred to as “applicable measures in a code of practice”. 4 If alternative measures have been taken or are in use to comply with a relevant duty, a duty to make and keep a written record containing the following information— a the applicable measures in a code of practice that have not been taken or are not in use, b the alternative measures that have been taken or are in use, c how those alternative measures amount to compliance with the duty in question, and d how the provider has complied with section 49(5) (freedom of expression and privacy). 5 If alternative measures have been taken or are in use to comply with a duty set out in section 27(2) or (3) or 29(2) or (3), the record required under subsection (4) of this section must also indicate whether such measures have been taken or are in use in every area listed in subsection (4) of those sections in relation to which there are applicable measures in a code of practice. 6 A duty to review compliance with the relevant duties in relation to a service— a regularly, and b as soon as reasonably practicable after making any significant change to any aspect of the design or operation of the service. 7 OFCOM may provide that particular descriptions of providers of search services are exempt from any or all of the duties set out in this section, and may revoke such an exemption. 8 OFCOM must publish details of any exemption or revocation under subsection (7), including reasons for the revocation of an exemption.

Additional duty for Category 2A services 9 As soon as reasonably practicable after making a record of a risk assessment as required by subsection (2), or revising such a record, a duty to supply OFCOM with a copy of the record (in full).

Interpretation 10 In this section— “alternative measures” means measures other than measures which are (in relation to the provider and the service in question) applicable measures in a code of practice; “code of practice” means a code of practice published under section 46; “relevant duties” means the duties set out in— section 27 (illegal content), section 29 (children’s online safety), section 31 (content reporting), and section 32 (complaints procedures), and for the purposes of subsection (6), also includes the duties set out in section 75 (deceased child users).

CHAPTER 4 — Children's access assessments

Children’s access assessments

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(1) In this Part, a “children’s access assessment” means an assessment of a Part 3 service—

(a) to determine whether it is possible for children to access the service or a part of the service, and

(b) if it is possible for children to access the service or a part of the service, to determine whether the child user condition is met in relation to the service or a part of the service.

(2) A provider is only entitled to conclude that it is not possible for children to access a service, or a part of it, if age verification or age estimation is used on the service with the result that children are not normally able to access the service or that part of it.

(3) The “child user condition” is met in relation to a service, or a part of a service, if—

(a) there is a significant number of children who are users of the service or of that part of it, or

(b) the service, or that part of it, is of a kind likely to attract a significant number of users who are children.

(4) For the purposes of subsection (3)—

(a) the reference to a “significant” number includes a reference to a number which is significant in proportion to the total number of United Kingdom users of a service or (as the case may be) a part of a service;

(b) whether the test in paragraph (a) of that subsection is met is to be based on evidence about who actually uses a service, rather than who the intended users of the service are.

(5) In this Chapter—

(a) references to children are to children in the United Kingdom;

(b) references to a part of a service do not include any part of a service that is not, or is not included in, a user-to-user part of a service or a search engine.

Duties about children’s access assessments

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(1) A provider of a Part 3 service must carry out the first children’s access assessment at a time set out in, or as provided by, Schedule 3.

(2) Subsections (3) and (4) apply to a provider of a Part 3 service during any period when the service is not treated as likely to be accessed by children (see section 37).

(3) The provider must carry out children’s access assessments of the service not more than one year apart.

(4) The provider must carry out a children’s access assessment of the service—

(a) before making any significant change to any aspect of the service’s design or operation to which such an assessment is relevant,

(b) in response to evidence about reduced effectiveness of age verification or age estimation that is used on the service as mentioned in section 35(2), or

(5) If a person is the provider of more than one Part 3 service, children’s access assessments must be carried out for each service separately.

(6) Children’s access assessments must be suitable and sufficient for the purposes of this Part.

(7) A provider must make and keep a written record, in an easily understandable form, of every children’s access assessment.

Meaning of “likely to be accessed by children”

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(1) For the purposes of this Part, a Part 3 service is to be treated as “likely to be accessed by children” in the following three cases (with the result that the duties set out in sections 11 and 12, or (as the case may be) sections 28 and 29, apply in relation to the service).

(2) The first case is where a children’s access assessment carried out by the provider of the service concludes that—

(a) it is possible for children to access the service or a part of it, and

(b) the child user condition is met in relation to—

(i) the service, or

(ii) a part of the service that it is possible for children to access.

This subsection is to be interpreted consistently with section 35.

(3) In that case, the service is to be treated as likely to be accessed by children from the date on which the children’s access assessment is completed.

(4) The second case is where the provider of the service fails to carry out the first children’s access assessment as required by section 36(1).

(5) In that case—

(a) the service is to be treated as likely to be accessed by children from the date by which the first children’s access assessment was required to have been completed (see Part 1 of Schedule 3), and

(b) the service is to continue to be treated as likely to be accessed by children by reason of subsection (4) until such time as the provider completes the first children’s access assessment of the service.

(6) The third case is where, following an investigation into a failure to comply with a duty set out in section 36, OFCOM determine that a service should be treated as likely to be accessed by children: see section 135(4) and (5).

(7) In that case, the service is to be treated as likely to be accessed by children from the date of, or specified in, the confirmation decision given to the provider of the service (as the case may be: see section 135(5)).

CHAPTER 5 — Duties about fraudulent advertising

Duties about fraudulent advertising: Category 1 services

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(1) A provider of a Category 1 service must operate the service using proportionate systems and processes designed to—

(a) prevent individuals from encountering content consisting of fraudulent advertisements by means of the service;

(b) minimise the length of time for which any such content is present;

(c) where the provider is alerted by a person to the presence of such content, or becomes aware of it in any other way, swiftly take down such content.

(2) A provider of a Category 1 service must include clear and accessible provisions in the terms of service giving information about any proactive technology used by the service for the purpose of compliance with the duty set out in subsection (1) (including the kind of technology, when it is used, and how it works).

(3) In relation to a Category 1 service, an advertisement is a “fraudulent advertisement” if—

(a) it is a paid-for advertisement (see section 236),

(b) it amounts to an offence specified in section 40 (construed in accordance with section 59: see subsections (3), (11) and (12) of that section), and

(4) If a person is the provider of more than one Category 1 service, the duties set out in this section apply in relation to each such service.

(5) In determining what is proportionate for the purposes of this section, the following factors, in particular, are relevant—

(a) the nature, and severity, of potential harm to individuals presented by different kinds of fraudulent advertisement, and

(b) the degree of control a provider has in relation to the placement of advertisements on the service.

(6) In the case of a Category 1 service which is a combined service, the duties set out in this section do not extend to—

(a) fraudulent advertisements that may be encountered in search results of the service or, following a search request, as a result of subsequent interactions with internet services, or

(b) anything relating to the design, operation or use of the search engine.

But if the service is also a Category 2A service, the duties set out in section 39 apply as well as the duties set out in this section.

(7) The duties set out in this section extend only to the design, operation and use of a Category 1 service in the United Kingdom.

(8) For the meaning of “Category 1 service”, see section 95 (register of categories of services).

Duties about fraudulent advertising: Category 2A services

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(1) A provider of a Category 2A service must operate the service using proportionate systems and processes designed to—

(a) prevent individuals from encountering content consisting of fraudulent advertisements in or via search results of the service;

(b) if any such content may be encountered in or via search results of the service, minimise the length of time that that is the case;

(c) where the provider is alerted by a person to the fact that such content may be so encountered, or becomes aware of that fact in any other way, swiftly ensure that individuals are no longer able to encounter such content in or via search results of the service.

(2) A provider of a Category 2A service must include clear and accessible provisions in a publicly available statement giving information about any proactive technology used by the service for the purpose of compliance with the duty set out in subsection (1) (including the kind of technology, when it is used, and how it works).

(3) In relation to a Category 2A service, an advertisement is a “fraudulent advertisement” if—

(a) it is a paid-for advertisement (see section 236), and

(b) it amounts to an offence specified in section 40 (construed in accordance with section 59: see subsections (3), (11) and (12) of that section).

(4) The references to encountering fraudulent advertisements “in or via search results” of a search service—

(a) are references to encountering fraudulent advertisements—

(i) in search results of the service, or

(ii) as a result of interacting with a paid-for advertisement in search results of the service (for example, by clicking on it);

(b) do not include references to encountering fraudulent advertisements as a result of any subsequent interactions with an internet service other than the search service.

(5) If a person is the provider of more than one Category 2A service, the duties set out in this section apply in relation to each such service.

(6) In determining what is proportionate for the purposes of this section, the following factors, in particular, are relevant—

(a) the nature, and severity, of potential harm to individuals presented by different kinds of fraudulent advertisement, and

(b) the degree of control a provider has in relation to the placement of advertisements on the service.

(7) The duties set out in this section extend only to the design, operation and use of a Category 2A service in the United Kingdom.

(8) For the meaning of “Category 2A service”, see section 95 (register of categories of services).

Fraud etc offences

40

(1) This section specifies offences for the purposes of this Chapter (see sections 38(3)(b) and 39(3)(b)).

(2) An offence under any of the following provisions of the Financial Services and Markets Act 2000—

(a) section 23 (contravention of prohibition on carrying on regulated activity unless authorised or exempt);

(b) section 24 (false claims to be authorised or exempt);

(3) An offence under any of the following provisions of the Fraud Act 2006—

(a) section 2 (fraud by false representation);

(b) section 4 (fraud by abuse of position);

(d) section 9 (participating in fraudulent business carried on by sole trader etc).

(4) An offence under any of the following provisions of the Financial Services Act 2012—

(a) section 89 (misleading statements);

(b) section 90 (misleading impressions).

(5) An offence of attempting or conspiring to commit an offence specified in subsection (2), (3) or (4).

(6) An offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) in relation to an offence specified in subsection (2), (3) or (4), or (in Scotland) inciting a person to commit such an offence.

(7) An offence of aiding, abetting, counselling or procuring the commission of an offence specified in subsection (2), (3) or (4), or (in Scotland) being involved art and part in the commission of such an offence.

CHAPTER 6 — Codes of practice and guidance

Codes of practice

Codes of practice about duties

41

(1) OFCOM must prepare and issue a code of practice for providers of Part 3 services describing measures recommended for the purpose of compliance with duties set out in section 10 or 27 (illegal content) so far as relating to terrorism content or offences within Schedule 5 (terrorism offences).

(2) OFCOM must prepare and issue a code of practice for providers of Part 3 services describing measures recommended for the purpose of compliance with duties set out in section 10 or 27 (illegal content) so far as relating to CSEA content or offences within Schedule 6 (child sexual exploitation and abuse offences).

(3) OFCOM must prepare and issue one or more codes of practice for providers of Part 3 services describing measures recommended for the purpose of compliance with the relevant duties (except to the extent that measures for the purpose of compliance with such duties are described in a code of practice prepared under subsection (1) or (2)).

(4) OFCOM must prepare and issue a code of practice for providers of Category 1 services and providers of Category 2A services describing measures recommended for the purpose of compliance with the duties set out in Chapter 5 (fraudulent advertising).

(5) Where a code of practice under this section is in force, OFCOM may—

(a) prepare a draft of amendments of the code of practice;

(b) prepare a draft of a code of practice under subsection (1), (2), (3) or (4) as a replacement for a code of practice previously issued under the subsection in question;

(6) In the course of preparing a draft of a code of practice or amendments of a code of practice under this section, OFCOM must consult—

(a) the Secretary of State,

(b) persons who appear to OFCOM to represent providers of Part 3 services,

(d) persons who appear to OFCOM to represent the interests of children (generally or with particular reference to online safety matters),

(e) persons who appear to OFCOM to represent the interests of persons who have suffered harm as a result of matters to which the code of practice is relevant,

(f) persons whom OFCOM consider to have relevant expertise in equality issues and human rights, in particular—

(i) the right to freedom of expression set out in Article 10 of the Convention, and

(ii) the right to respect for a person’s private and family life, home and correspondence set out in Article 8 of the Convention,

(g) the Information Commissioner,

(h) the Children’s Commissioner,

(i) the Commissioner for Victims and Witnesses,

(j) the Domestic Abuse Commissioner,

(k) persons whom OFCOM consider to have expertise in public health, science or medicine that is relevant to online safety matters,

(l) persons whom OFCOM consider to have expertise in innovation, or emerging technology, that is relevant to online safety matters, and

(m) such other persons as OFCOM consider appropriate.

(7) In the course of preparing a draft of a code of practice or amendments to which this subsection applies, OFCOM must also consult persons whom OFCOM consider to have expertise in the enforcement of the criminal law and the protection of national security that is relevant to online safety matters.

(8) Subsection (7) applies to—

(a) a code of practice under subsection (1) and amendments of such a code,

(b) a code of practice under subsection (2) and amendments of such a code,

(c) a code of practice under subsection (3) that describes measures recommended for the purpose of compliance with duties set out in section 10 or 27 (illegal content),

(d) amendments of a code of practice under subsection (3), if and to the extent that those amendments relate to measures recommended for the purpose of compliance with duties set out in section 10 or 27, and

(e) a code of practice under subsection (4) and amendments of such a code.

(9) Subsections (6) and (7) are subject to section 48 (minor amendments of code of practice).

(10) In this section “the relevant duties” means the duties set out in—

(a) sections 10 and 27 (illegal content),

(b) sections 12 and 29 (children’s online safety),

(d) section 17 (content of democratic importance),

(e) section 19 (journalistic content),

(f) sections 20 and 31 (content reporting), and

(g) sections 21 and 32 (complaints procedures).

Codes of practice: principles, objectives, content

42

Schedule 4 contains—

(a) provision about the principles OFCOM must consider when preparing codes of practice under section 41,

(b) the online safety objectives (and a power for the Secretary of State by regulations to revise those objectives),

(c) provision about the measures that may be described in codes of practice (including, in particular, constraints on the recommendation of the use of proactive technology), and

(d) other provision related to codes of practice.

Procedure for issuing codes of practice

43

(1) Where OFCOM have prepared a draft of a code of practice under section 41, they must submit the draft to the Secretary of State.

(2) Unless the Secretary of State intends to give a direction to OFCOM under section 44(1), (2) or (3) in relation to the draft, the Secretary of State must, as soon as reasonably practicable, lay the draft before Parliament.

(3) If, within the 40-day period, either House of Parliament resolves not to approve the draft—

(a) OFCOM must not issue the code of practice in the form of that draft, and

(b) OFCOM must prepare another draft of the code of practice under section 41.

(4) If no such resolution is made within that period—

(a) OFCOM must issue the code of practice in the form of the draft laid before Parliament, and

(b) the code of practice comes into force at the end of the period of 21 days beginning with the day on which it is issued.

(5) “The 40-day period” is the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House of Parliament on the same day, the later of the days on which it is laid).

(6) In calculating the 40-day period, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.

(7) Subsections (1) to (6) apply in relation to a draft of amendments of a code of practice prepared under section 41 as they apply in relation to a draft of a code of practice prepared under that section.

(8) This section is subject to section 48 (minor amendments of codes of practice).

(9) Subsection (11) applies to—

(a) a draft of the first code of practice prepared under section 41(1) (terrorism code of practice);

(b) a draft of the first code of practice prepared under section 41(2) (CSEA code of practice);

(c) a draft of the first code of practice prepared under section 41(3) relating to a duty set out in section 10 or 27 (illegal content);

(d) a draft of the first code of practice prepared under section 41(3) relating to a duty set out in section 12 or 29 (children’s online safety);

(e) a draft of the first code of practice prepared under section 41(3) relating to a duty set out in section 20 or 31 (content reporting);

(f) a draft of the first code of practice prepared under section 41(3) relating to—

(i) a duty set out in section 21 (complaints procedures) that concerns complaints of a kind mentioned in subsection (4) or (5) of that section, or

(ii) a duty set out in section 32 (complaints procedures).

(10) For the purposes of paragraphs (c) to (f) of subsection (9) a draft of a code of practice is a draft of the first code of practice relating to a duty if—

(a) it describes measures recommended for the purpose of compliance with the duty, and

(b) it is a draft of the first code of practice prepared under section 41(3) that describes measures for that purpose.

(11) OFCOM must submit a draft to which this subsection applies to the Secretary of State under subsection (1) within the period of 18 months beginning with the day on which this Act is passed.

(12) If OFCOM consider that it is necessary to extend the period mentioned in subsection (11) in relation to a draft mentioned in any of paragraphs (a) to (f) of subsection (9), OFCOM may extend the period in relation to that draft by up to 12 months by making and publishing a statement.

But this is subject to subsection (15).

(13) A statement under subsection (12) must set out—

(a) the reasons why OFCOM consider that it is necessary to extend the period mentioned in subsection (11) in relation to the draft concerned, and

(b) the period of extension.

(14) A statement under subsection (12) may be published at the same time as (or incorporate) a statement under section 194(3) (extension of time to prepare certain guidance).

(15) But a statement under subsection (12) may not be made in relation to a draft mentioned in a particular paragraph of subsection (9) if—

(a) a statement has previously been made under subsection (12) (whether in relation to a draft mentioned in the same or a different paragraph of subsection (9)), or

(b) a statement has previously been made under section 194(3).

Secretary of State’s powers of direction

44

(1) The Secretary of State may direct OFCOM to modify a draft of a code of practice submitted under section 43(1) if the Secretary of State believes that modifications are required for the purpose of securing compliance with an international obligation of the United Kingdom.

(2) The Secretary of State may direct OFCOM to modify a draft of a code of practice, other than a terrorism or CSEA code of practice, submitted under section 43(1) if the Secretary of State believes that modifications are required for exceptional reasons relating to—

(a) national security,

(b) public safety,

(d) relations with the government of a country outside the United Kingdom.

(3) The Secretary of State may direct OFCOM to modify a draft of a terrorism or CSEA code of practice submitted under section 43(1) if the Secretary of State believes that modifications are required—

(a) for reasons of national security or public safety, or

(b) for exceptional reasons relating to public health or relations with the government of a country outside the United Kingdom.

(4) But if a draft of a terrorism or CSEA code of practice is submitted under section 43(1) following a review under section 47(2), the Secretary of State may only direct OFCOM to modify the draft if the Secretary of State believes that modifications are required for reasons of national security or public safety.

(5) If, following a review of a terrorism or CSEA code of practice under section 47(2), OFCOM submit a statement to the Secretary of State under section 47(3)(b) (“OFCOM’s review statement”), the Secretary of State may direct OFCOM to modify the code of practice if the Secretary of State believes that modifications are required for reasons of national security or public safety.

(6) A direction given under subsection (5)—

(a) must be given within the period of 45 days beginning with the day on which OFCOM’s review statement is submitted to the Secretary of State, and

(b) must make particular reference to OFCOM’s review statement.

(7) A direction given under this section—

(a) may not require OFCOM to include in a code of practice provision about a particular measure recommended to be taken or used by providers of Part 3 services,

(b) must set out the Secretary of State’s reasons for requiring modifications, except in a case where the Secretary of State considers that doing so would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom, and

(8) If the Secretary of State considers that publishing and laying before Parliament a direction given under this section would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom—

(a) subsection (7)(c) does not apply in relation to the direction, and

(b) the Secretary of State must, as soon as reasonably practicable, publish and lay before Parliament a document stating—

(i) that a direction has been given,

(ii) the kind of code of practice to which it relates, and

(iii) the reasons for not publishing it.

(9) If the Secretary of State gives a direction under this section, OFCOM must, as soon as reasonably practicable—

(a) comply with the direction,

(b) submit to the Secretary of State a draft of the code of practice modified in accordance with the direction,

(i) (except in a case mentioned in subsection (7)(b)) details of the direction, and

(ii) details about how the draft has been revised in response to the direction,

(d) publish the document, and

(e) inform the Secretary of State about modifications that OFCOM have made to the draft that are not in response to the direction (if there are any).

(10) The Secretary of State may give OFCOM one or more further directions requiring OFCOM to modify the draft of the code of practice.

(11) Such further directions may only be given for the reasons set out in subsection (1), (2), (3), (4) or (5) (as the case may be), and subsections (7) to (9) apply again in relation to such further directions.

(12) When the Secretary of State is satisfied that no further modifications to the draft are required, the Secretary of State must, as soon as reasonably practicable, lay before Parliament—

(a) the modified draft,

(b) any document submitted by OFCOM as mentioned in subsection (9)(c), and

(13) Before laying OFCOM’s review statement before Parliament, the Secretary of State may, with OFCOM’s agreement, remove or obscure information in the statement (whether by redaction or otherwise) in order to prevent the disclosure of matters that the Secretary of State considers would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom.

(14) This section applies in relation to a draft of amendments of a code of practice submitted under section 43(1) as it applies in relation to a draft of a code of practice submitted under that provision.

(15) In this section “terrorism or CSEA code of practice” means a code of practice under section 41(1) or (2).

Procedure for issuing codes of practice following direction under section 44

45

(1) This section sets out the procedure that applies where a draft of a code of practice is laid before Parliament under section 44(12).

(2) If the draft contains modifications made following a direction given under section 44(1), (2) or (3)(b), the affirmative procedure applies.

(3) If the draft contains modifications made following a direction given under section 44(3)(a), (4) or (5), the negative procedure applies.

(4) The “affirmative procedure” is as follows—

(a) a code of practice in the form of the draft laid before Parliament must not be issued by OFCOM unless the draft has been approved by a resolution of each House of Parliament;

(b) if the draft is so approved, the code of practice comes into force at the end of the period of 21 days beginning with the day on which it is issued;

(5) The “negative procedure” is as follows—

(a) if, within the 40-day period, either House of Parliament resolves not to approve the draft—

(i) OFCOM must not issue the code of practice in the form of that draft, and

(ii) OFCOM must prepare another draft of the code of practice under section 41;

(b) if no such resolution is made within that period—

(i) OFCOM must issue the code of practice in the form of the draft laid before Parliament, and

(ii) the code of practice comes into force at the end of the period of 21 days beginning with the day on which it is issued.

(6) “The 40-day period” has the same meaning as in section 43 (see subsections (5) and (6) of that section).

(7) This section applies in relation to a draft of amendments of a code of practice laid before Parliament under section 44(12) as it applies in relation to a draft of a code of practice laid under that provision.

Publication of codes of practice

46

(1) OFCOM must publish each code of practice issued under section 43 or 45 within the period of three days beginning with the day on which it is issued.

(2) Where amendments of a code of practice are issued under either of those sections, OFCOM must publish the amended code of practice within the period of three days beginning with the day on which the amendments are issued.

(3) Where a code of practice is withdrawn, OFCOM must publish a notice to that effect.

Review of codes of practice

47

(1) OFCOM must keep under review each code of practice published under section 46.

(2) The Secretary of State may require OFCOM to review a terrorism or CSEA code of practice published under section 46 if the Secretary of State considers a review to be necessary for reasons of national security or public safety (and the Secretary of State must notify OFCOM whether the reasons fall into the category of national security or public safety).

(3) OFCOM must carry out a review of the code of practice under subsection (2) as soon as reasonably practicable, and when it is completed—

(a) if OFCOM consider that changes are required, they must prepare a draft of amendments to the code of practice or a draft of a replacement code of practice under section 41, or

(b) if OFCOM consider that no changes are required, they must submit to the Secretary of State a statement which explains the reasons for that conclusion.

(4) Subsection (5) applies if—

(a) OFCOM submit a statement under subsection (3)(b) to the Secretary of State,

(b) the period of 45 days beginning with the day on which the statement was submitted has elapsed, and

(5) OFCOM must publish the statement as soon as reasonably practicable after the end of the period mentioned in subsection (4)(b), making it clear which code of practice the statement relates to.

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