Ofcom has published its advice to the UK Government on the thresholds that would determine how services are categorised for the purposes of the Online Safety Act 2023 (the “OSA”).

Categorisation is a central feature of the OSA: while all services within the scope of the new regime will be subject to duties to protect UK users from illegal content and, where applicable, protect children from online harm, certain services will be required to comply with additional requirements if they are designated as ‘categorised services’. A service will be categorised as either Category 1, 2A, or 2B if they meet certain thresholds set out in secondary legislation, and Ofcom’s preliminary analysis suggests that between 35-60 services will be categorised in total. Ofcom was charged with researching where the thresholds for each category should be set, and advising the Secretary of State accordingly.

Category 1 Services

Category 1 services are those user-to-user services that have the highest reach and the highest risk functionalities, resulting in the greatest number of additional obligations. Ofcom was required to recommend at least one threshold condition that related to the number of users of the user-to-user part of the service, and at least one that related to the functionalities of that part of the service. It was also required to consider also how readily user-generated content could be disseminated on the service.

Ofcom’s research suggested that there are two features of a service that are most relevant to content being disseminated easily, quickly, and widely: (1) content recommender systems; and (2) the ability for users to forward or re-share content.

As a result, Ofcom has recommended that the threshold conditions for category 1 services should be those services that fulfil either of the following two conditions:

Condition 1:

• Use a content recommender system; and
• Have more than 34 million UK users on the user-to-user part of the service

Condition 2:

• Allow users to forward or reshare user-generated content; and
• Use a content recommender system; and
• Have more than 7 million UK users on the user-to-user part of the service.

Category 2A Services

Category 2A services are the highest reach search services. Ofcom was required to recommend at least one threshold condition related to the number of users of the search engine, and also consider the likely impact that the number of users of the search engine may have on the risk of harm to individuals from illegal content or content that is harmful to children.

Ofcom’s research suggested that search services that only focused on a specific topic or type of content (so-called ‘vertical search services’) posed a lower risk of harm than general search services due to their limited search functionality. Accordingly, Ofcom has recommended that the threshold conditions for category 2A services should be those search services that:

• Are not vertical search services; and
• Have more than 7 million UK users on the search engine part of the service.

Category 2B Services

Category 2B services are user-to-user services which do not meet the Category 1 threshold conditions, but nonetheless present sufficient risks to justify categorisation as a result of the number of users and certain functionalities. Ofcom was required to recommend at least one threshold condition related to the number of users of the user-to-user part of the service and at least one relating to the functionalities of that part of the service.

Ofcom’s research suggested that, in addition to a large user base increasing the risk of harm, the functionality of direct messaging was “particularly relevant as it allows a user to directly disseminate content to another user, without other users being able to see or access this content”.

As a result, Ofcom recommended that the threshold conditions for category 2B services should be those services that:

• Allow users to send direct messages; and
• Have more than 3 million UK users on the user-to-user part of the service.

The Secretary of State will now consider Ofcom’s advice and produce draft secondary legislation. The advice suggests that this will be finalised by the summer, at which point Ofcom will gather information from regulated services and publish a register of categorised services by the end of this year.

To read the advice in full, click here.