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

Rupert Paines, for the claimants, submits that the Secretary of State failed to consider the full likely impact of the two critical features (content recommender systems and forward/share functionalities) on viral dissemination, as required by paragraph 1(5) of schedule 11. On analysis of Ofcom’s advice and the Secretary of State’s acceptance of that advice, there was an erroneous assumption that these features are always integral to an online service, and that they inter-operate to cause viral dissemination. The Secretary of State’s consideration of those features was therefore based on, and limited to, an assumption that they are integral to the service that they inter-operate, disregarding instances (such as in the case of Wikipedia) where they are ancillary, where they operate independently of one another, and where they do not give rise to any risk of viral dissemination. That omission meant the Secretary of State did not comply with his duty under paragraph 1(5) of schedule 11.

Cecilia Ivimy KC, for the defendant, submits that the obligation under paragraph 1(5) of schedule 11 does not require a granular analysis to consider the different ways in which these features might operate, as posited by the claimants. Nor was the Secretary of State required to consider every possible interaction of functionalities and user numbers. He was entitled to rely on Ofcom’s research and advice. The Secretary of State did consider the likely impact of user numbers and functionalities on viral dissemination, and that was all that was required by paragraph 1(5) of schedule 11.