The new year could see a significant increase in enforcement activity by Ofcom against companies that fail to comply with their duties under the Online Safety Act 2023 ("OSA 2023").
In an interview with Global Investigations Review, Suzanne Cater, Enforcement Director at Ofcom, signalled that the regulator is more than ready to use its enforcement powers against offending companies as certain provisions of the OSA 2023 come into force in the new year.
The OSA 2023 has given Ofcom a range of powers including:
- The power to fine offending companies up to £18m, or 10% of their qualifying worldwide revenue (whichever is greater).
- The power to apply to the courts for business disruption orders that could impose certain requirements or restrictions on regulated service providers or limit access to their platforms within the UK.
- The power to criminally prosecute companies and their senior managers that fail to comply with certain requirements.
We have previously written about the provisions of the OSA 2023 in more detail here and here.
With the range of powers available to Ofcom it is important for companies and individuals to be familiar with how it will seek to enforce compliance with the OSA 2023.
Suzanne Cater indicated that Ofcom would generally favour a collaborative approach to ensuring compliance. This is likely to mean that Ofcom will make further use of measures like its compliance remediation programme that allows companies to make requisite changes to how they operate in order to obviate the need for Ofcom to open a formal investigation. This is a welcome development for businesses who may need time to adjust to the letter and spirit of the new legislation.
However, Ofcom can and will make use of its criminal powers particularly in cases where companies and/or individuals do not respond to Ofcom's attempts to make them compliant. In Cater's words, Ofcom is prepared to "use all of the tools in [its] toolbox".
As Ofcom also has limited resources, it is likely that it will look to take action in cases that will resonate most across the relevant sectors and have the biggest impact.
Regulated companies have now had some time to digest the changes introduced by the OSA 2023 - so it is crucial that they implement appropriate compliance procedures and that they are responsive to Ofcom's attempts to engage with them. Ofcom will seek out opportunities to make an example of serious and repeat offenders, and so now is the time to act.
Suzanne Cater indicated that 2025 will be a "year of action" for Ofcom as it seeks to make use of its new powers to enforce compliance amongst companies that provide services that it regulates. Regulated companies would do well to take heed of this warning.