AC-2025-LON-001365 - [2025] EWHC 2086 (Admin)

Paragraph 1(5) of schedule 11 of the Act required the Secretary of State, when making the regulations, to take account of the likely impact of the number of users of a service, and its functionalities, on viral dissemination.

The Secretary of State took account of the impact of the number of users. He accepted Ofcom’s advice as to the thresholds to be applied. A separate issue arises in relation to how numbers of users should be calculated, but that is relevant to ground (2). The real issue under ground (1) concerns functionalities.

Ofcom considers that content recommender systems do not, strictly, fall within the statutory definition of a functionality. Whether it is right or wrong about that, for these purposes a content recommender system can be treated as a functionality. That is because even if it does not fall within the statutory definition, both parties agree that its impact on the dissemination of content is a relevant factor that the Secretary of State was obliged to take into account at common law. Moreover, Ofcom treated content recommender systems, for these purposes, as though they are functionalities. I would not, therefore, dismiss this ground of challenge, so far as it concerns content recommender systems, on the basis that such systems are not functionalities.

Ofcom, as the relevant and expert regulator, was under a statutory obligation to conduct research into how easily, quickly and widely user-generated content is disseminated by user-to-user services, and the functionalities of the user-to-user part of such services: paragraph 2(2) of schedule 11. In conducting that research, a significant focus was the impact of different functionalities on viral dissemination. It then provided advice that was based on its research, as required by paragraph 2(5) of schedule 11. The Secretary of State was required to, and did, take account of that advice.

By the time of the first Ministerial Submission to the (new) Secretary of State, there had been extensive discussion of the issues at both Ministerial and official level and there had been a degree of lobbying. Ms Rowland’s evidence is that those discussions fed into the briefings that were given to the Secretary of State. That evidence is consistent with the contemporaneous documents. The advice that Ofcom had provided was well understood. There was an appreciation that if the advice was accepted then the consequences for which services would fall within the scope of Category 1 were not entirely clear. Some services were likely to be in scope; others, including Wikipedia, were “possibilities” and were considered to be “outliers”. There was also an appreciation of the benefits and risks of not accepting Ofcom’s advice and/or seeking further advice.

The Submission of 18 July 2024 told the Secretary of State that the issue was controversial among stakeholders and Parliamentarians. He was told that he was required to take account of the likely impact of a service’s functionalities on viral dissemination. The uncontested evidence of Ms Rowland shows that the Secretary of State was closely engaged with the relevant issues. He did not simply approve the recommendation of Ofcom. The Minister had a meeting to express concern about the impact of the advice on “outlier” services, and options were then considered to exclude those services, including Wikipedia. Those options included conducting further research into viral dissemination and to understand more about the operation of content recommender systems. That was presented, in detail, in the submission of 31 July 2024. Again, the Secretary of State did not simply approve the recommendation to accept Ofcom’s advice. A further meeting took place, attended by the Secretary of State, on 12 August 2024. At that meeting, the Secretary of State considered the impact of Ofcom’s advice on online encyclopaedias and was content not to seek further advice on this issue.

The Secretary of State thus considered and accepted Ofcom’s advice. He therefore considered and accepted the advice that, for large services, content recommender systems and a functionality to forward and share user-generated content (but not so much other functionalities) impacted on viral dissemination and appreciated that this advice was being given at a high level of generality. It follows that he took account of the likely impact of a service’s functionalities on viral dissemination. It follows that he complied with paragraph 1(5) of schedule 11 so far as functionalities are concerned.

The claimants’ key argument is based on a literal reading of paragraphs 3.23 and 3.24 of Ofcom’s advice, which were faithfully reflected in the material put before the Secretary of State. On the basis of a literal reading of those paragraphs, the claimants say that Ofcom advised that the two key functionalities that they identified were “alone sufficient” for viral dissemination. It follows, say the claimants, that Ofcom necessarily assumed that the two functionalities would be integral to the service and would operate and interact to disseminate content to users. However, that is only the case where the content recommender system supplies content to the majority of users. Ofcom’s logic does not apply to a feature like the New Pages Feed where the content recommender system operates in a quite different manner to assist a small group of moderators to ensure the quality of user-generated content. They say that the Secretary of State never addressed his mind to this issue. Instead, he necessarily restricted himself to consideration of the impact of content recommender systems and forward and share functions which are integral to a service, and which operate in conjunction with each other.

The claimants may well be right that there are instances (and the New Pages Feed may well be a good example) where a feature that, on one view, might amount to a content recommender system does not promote viral dissemination, and where it does not operate in conjunction with a forward and share functionality. They are also no doubt correct that the Secretary of State did not consider all the different ways in which content recommender systems (or forward and share functionalities) might operate, and the impact which each different mode of operation might have on content dissemination.

This does not, however, amount to a breach of paragraph 1(5). The claimants’ argument does not take account of the nature of Ofcom’s advice, the nature of the obligation imposed by paragraph 1(5), and the evidence about the Secretary of State’s consideration of the issues.

As to the nature of the advice, Mr Paines is correct that paragraphs 3.23 and 3.24, when read in isolation, appear to indicate that where a service has a considerable number of users, a content recommender system and a forward/share functionality are sufficient (irrespective of how they operate in practice) to increase the likelihood of viral dissemination. However, those paragraphs need to be read in the context of the advice as a whole. When that is done, they cannot properly be understood in such a literal and inflexible sense:

As to the nature of the obligation imposed by paragraph 1(5), it is pitched at a high level of generality. The Secretary of State is required to assess the “likely” impact of functionalities (generally) on content dissemination. That is an assessment that has to be made across the entire universe of online regulated user-to-user services. There are a vast number of such services operating in many different sectors. Nothing in the statutory language implies that the Secretary of State is required to consider each different functionality of each different service in each different sector, or that he is required to determine the precise impact of any particular functionality on content dissemination, or that he is required to consider the many different ways in which individual functionalities might operate.

The core of the claimants’ case is that the Secretary of State was obliged to consider the different ways in which functionalities might operate where they are not integral, or core, to a service, and to recognise that in such cases they are unlikely to result in viral dissemination. I do not agree. Nothing in paragraph 1(5) requires the Secretary of State to draw that distinction or undertake that level of analysis. The obligation is pitched at an altogether higher level. The advice that the Secretary of State was given was that the operation of content recommender systems was often opaque, and that they regularly change. No doubt, they operate in many different and changing ways. The claimants focus on a distinction that might assist their particular case, but many other distinctions could be considered. There may be possible distinctions between core and non-core functionalities; or between integral and non-integral functionalities; or between functionalities that operate across the whole user-base and those that impact on only a limited sub-set of users; or between those that are relatively unconstrained and those that are constrained by the operation of policies; or between those that are intended to amplify content and those that are intended to restrict content; or between those that are intended for moderation purposes and those that are not; or between those that are operated in the not-for-profit sector and those that are operated by large profit making organisations where viral dissemination is important to the business model. It was not necessary (or practical, or possible) for the Secretary of State to work through all the different possible permutations. Moreover, the distinction that the claimants seek to draw is not hard-edged. They do not propose any test that would determine whether a content recommender system is “integral” or “non-integral” to a service. It is not easy to formulate such a test. The advice that the Secretary of State was given was that further advice would be required to undertake a more granular analysis, but that until the first regulations had been made it was unclear that Ofcom had a statutory power to provide such advice. It is thus unclear how the Secretary of State could, in practice, have distinguished between the effect on viral dissemination of integral and non-integral functionalities, or how he could have undertaken anything other than the high level and general assessment that is required by paragraph 1(5).

As to the evidence of the Secretary of State’s consideration of the issues, although he did not, and could not, undertake the type of analysis that the claimants suggest, he was well aware of the complexities, and of the fact that Ofcom’s advice might produce some results (possibly in both directions) that did not reflect the underlying policy intent. Hence, the focus on “outliers” and the potential that a service such as Wikipedia, which officials (and seemingly Ofcom) had not originally contemplated falling with Category 1 might do so. All of that was considered.

Accordingly, the Secretary of State therefore did, in making regulation 3, take into account the likely impact of a service’s functionalities on viral dissemination. There was no breach of paragraph 1(5) of schedule 11.

For these reasons, while I grant permission to claim judicial review on ground (1), this ground of claim is dismissed.