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

The Act came into force on 26 October 2023. Ofcom was then required to conduct its research within 6 months. That was the first stage in the statutory process for making the regulations.

Ofcom’s research was informed by four themes: consistency (applying the same data sources and research for category 1 conditions as for other category conditions), objectivity (the underlying work was done in a “service-agnostic” way, in part by ensuring that data could not be linked to an identified service), scope (the aim was to use comprehensive and reliable data sources, recognising the lack of robust data on matters such as user numbers), and transparency (by publishing the data and additional research sources).

In conducting its research into viral dissemination, Ofcom paid particular attention to different functionalities (including different forms of livestreaming, different types of forwarding or re-sharing user-generated content, and in-livestream chat) which it considered facilitated users to disseminate material near-instantaneously, with the potential to reach multiple users at once. For these purposes, it treated “content recommender systems” as a functionality (albeit it says that they do not strictly meet the statutory definition of a functionality). It considered the operation of these functionalities across many different types of service, including social-media, information-sharing, pornography, marketplaces and video-sharing.

It summarised its research thus:

“Research: Our research findings indicate that the features of a service most relevant to content being disseminated easily, quickly and widely are:

• content recommender systems, because they are typically relied upon by services to amplify content to a wide set of users; and

• the ability for users to forward or re-share content, because this facilitates users sharing content instantaneously with others.

In our view, these two features each operate to increase dissemination of content easily, quickly and widely. Additionally, the effects of these features are likely to be increased further as the user base increases and when these features operate in combination. In essence, the higher the user base, the more content that is likely to be shared.”

The second stage was for Ofcom to provide advice to the Secretary of State. It did that on 29 February 2024. It provided the following summary of its advice:

“Advice: For these reasons, our advice is that category 1 thresholds should target services that fulfil either of the two following sets of conditions:

Condition 1:

• the use of a content recommender system on its service; and

• have more than 34 million UK users on the user-to-user part of the service, representing c.50% of the UK population.

Condition 2:

• have a functionality that offers users the ability to forward or re-share user-generated content with other users of the service; and

• the use of a content recommender system on its service; and

• have more than 7 million UK users on the user-to-user part of the service, representing c.10% of the UK population.”

In the body of its advice, it explained its rationale:

“3.18

We analysed each of the six functionalities and content recommender systems and have concluded that two, in particular, stand out from our research as playing a particularly significant role in the dissemination of regulated user-generated content. These are:

a)

the use of a content recommender system; and

b)

the ability to forward or re-share user-generated content with other users of the service.

3.19

Content recommender systems amplify the breadth, scale and speed of content dissemination on a service by proactively disseminating content to new users or groups of users. Content recommender systems therefore play a fundamental role in enabling content to be disseminated easily, quickly and widely. Forwarding or re-sharing existing content with other users of a service is another key component of content dissemination, as it allows for the movement of existing content to new users or groups of users, by specifically enabling users themselves to affect content dissemination. These two features allow both the service and the user to affect the dissemination of content.

…

3.23

…we judge that where services have a very large number of users, a content recommender system alone is sufficient for content to be disseminated easily, quickly and widely. This is because a service’s content recommendation system results, in and of itself, in the dissemination of content to a very large audience without the need for users themselves to further share content.

3.24

Where services have a lower but still considerable number of users, a content recommender system alone may not be sufficient to disseminate content quickly, easily and widely. We judge that the ability for users to forward or re-share existing content on the service operates in conjunction with a content recommender to increase the likelihood of quick, easy and wide content dissemination: this can occur both through active content dissemination, driven by users' own engagement with content, as well as via content dissemination driven by the service's own systems.

3.25

Based on our analysis above, we therefore consider it appropriate to recommend two sets of thresholds for category 1.

3.26

We are required to recommend a user number threshold to the Secretary of State. In doing so we have exercised our regulatory judgement having regard to our general duties under the Communications Act 2003 and the function we are carrying out.

3.27

Set one: Considering the quick, easy and wide dissemination of content, we judge that services with content recommender systems and very large user bases are relevant to category 1. Based on our analysis, we propose that a user number threshold of 34 million UK users of the user-to-user part of the service is appropriate for such services. This represents approximately 50% of the total UK population.

3.28

Set two: Considering the quick, easy and wide dissemination of content, we judge that services with content recommender systems, the ability for users to forward or re-share existing content on the service and large user bases are relevant to category 1. Based on our analysis, we propose that a user number threshold of 7 million UK users of the user-to-user part of the service is appropriate for such services. This represents approximately 10% of the total UK population.

3.29

Our preliminary indicative analysis suggests that approximately 12-16 services may meet one or both of these user number thresholds, when factoring in the impact of the functionality requirements described above. This estimated number of services in our view indicates that our recommended user number thresholds are likely to strike the right balance in terms of targeting those services where content is likely to be disseminated easily, quickly and widely, while ensuring that the duties apply to a sufficiently targeted number of services.”