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

Mr Paines submits that Regulation 3 captures services with content recommender systems and forward/share functionalities even if those functionalities are not integral to the service and thus do not give rise to a risk of viral dissemination. That involves a failure both of reasoning and investigation which has resulted in overbroad criteria. It was also illogical not to take account of the time spent by users accessing the service (which, for Wikipedia is around 18 minutes per month, compared to 32 hours per month for Meta sites such as Facebook and Instagram, and Alphabet sites such as YouTube and Google search) when calculating the number of monthly users. For these reasons, the decision to make the regulation was irrational.

Ms Ivimy argues that the regulations have a logical underpinning that derives from Ofcom’s research and advice. In the light of that research and advice it was reasonable and logical to use content recommender systems and forward/share functionalities, in conjunction with a high minimum user number threshold, to capture services that are likely to involve viral dissemination. Even if the conditions are imperfect, it is permissible to adopt broad regulatory measures in what is a highly complex and technical field.