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

The next step is for Ofcom to establish a register of Category 1 services. To do this, it must identify which services fall within the scope of regulation 3. In doing so, it must (so far as possible) read and give effect to regulation 3 in a way which is compatible with Convention rights: section 3(1) of the Human Rights Act 1998.

In order to determine which services meet the Category 1 criteria, Ofcom has issued information notices to providers of services that it considers might do so. One such notice was issued to the first claimant on 27 March 2025 (a draft having been sent in January 2025). It asks the first claimant to provide the mean number of monthly active United Kingdom users for Wikipedia, how it determines whether a person is an active United Kingdom user, and whether Wikipedia uses a content recommender system and whether it provides a functionality for users to forward or share regulated user-generated content with other users. The first claimant responded on 16 May 2025. It contended that Wikipedia did not fall to be categorised as a Category 1 service. It pointed out that insofar as Wikipedia has a content recommender system and forward/share functionality, this is not typically used to serve content to large numbers of users in any significant way, it is not integral to the user “journey”, and it is primarily used for ancillary purposes such as content moderation. Ofcom has not yet determined whether Wikipedia is a Category 1 service.

Once Ofcom has published the register of Category 1 services, it will issue draft transparency notices “within a few weeks” and will then issue final transparency notices “soon thereafter”. It will then publish draft Codes of Practice. Ms Rowland, in her witness statement, said that would be “no later than 2026”. I was told that the Codes of Practice would not be in force before 2027.

The Secretary of State may, at any stage, amend the regulations (subject to certain procedural requirements, including taking further advice from Ofcom). In particular, he may do so once Ofcom has established its register of Category 1 services. Thus if, at that point, services are included that the Secretary of State considers should not be included, it is open to the Secretary of State to amend the regulations. Arguably, the Secretary of State would be under a statutory duty to do so if that were necessary to avoid a breach of Convention rights. Ms Rowland, in her witness statement, says that when the Secretary of State made regulation 3 he took account of his power to amend them in the light of subsequent developments when the impact of imposing Category 1 duties would be better understood. He also took account of the relatively long lead-in time to the implementation of Category 1 duties.