Letter to OFCOM re: Online Safety Act 2023 use(draft)

As is my standard, I will send this letter myself if nobody with a better profile than me chooses to do so (with any edits they wish). Offers welcome

Letter as follows……

Dame Melanie Henrietta Dawes DCB

Chief Executive

OFCOM

Riverside House

2A Southwark Bridge Road,

London

SE1 9HA

August 19th 2024

Dear Dame Melanie

Use of your powers under Section 100 of the Online Safety Act 2023

Summary

I am writing to ask that you exercise your powers under the above Act, in order to require appropriate representatives of the company X, formerly known as Twitter, to disclose information for the purposes of assessing that company’s compliance with its duties under section 10 of the same Act (Safety duties about illegal content).

Facts

The facts relevant to my request are as follows:

1) On August 16th 2024 a 35 year old man was sentenced to three years in prison after pleading guilty to a charge of publishing written material to stir up racial hate.

2) The conviction came as a result of posts made on the X platform by the defendant between July 28th and August 8th 2024.

3) It emerged during court proceedings that the defendant had, in his estimate, been paid approximately £1,400 per month by the company X in relation to his ‘content creation’.

Case for use of your powers

a) The primary service provided by company X meets the definition, set out at Section 3, paragraph 1 of the Online Safety Act 2023, of a “user-to-user service” means an internet service by means of which content that is generated directly on the service by a user of the service, or uploaded to or shared on the service by a user of the service, may be encountered by another user, or other users, of the service”. X’s primary service is therefore open to the use of powers set out at Section 100 of the Act.

b) Section 100, para 6a (i) of the Online Safety Act 2023 states that an appropriate use of its powers to require information under section 100 para 1 includes the gathering of information required by OFCOM for the purpose of assessing compliance with…..any duty or requirement set out in Chapter 2, 3, 4 or 5 of Part 3” of the Act. This part of the Act came into force on January 10th 2024 by virtue of The Online Safety Act 2023 (Commencement №2) Regulations 2023 (2023/1420)

c) Chapter 2 of the Act includes Section 10, which imposes a duty on all services, at paragraph 2, to take or use proportionate measures relating to the design or operation of the service to prevent individuals from encountering priority illegal content by means of the service,

d) It is logical to assume that if the defendant convicted of publishing written material to stir up racial hate as a result posted on X, then X allowed to be posted messages which constitute illegal content, and allowed individuals to encounter this illegal content by means it s service.

e) It is therefore reasonable and proportionate for OFCOM to seek information from x on whether X did comply with its duty to take proportionate measures to prevent illegal content being encountered, and to use the powers it enjoys under Section 100 of the Online Safety Act 2023 to do so.

f) Further, it is reasonable to seek information from X on the amount of and reasoning for payments reported in court to have been made to the defendant in respect of his posts to X, and to assess whether such payments may reflect any specific failure by X to undertake the duties set sown in law at section 10.

g) While one case of conviction in relation to posts o X is set out here, OFCOM may of course wish to expand the use of its powers to cover other relevant cases.

What is now asked of OFCOM

With this background and argument n mind, I would be grateful if you would consider exercising your powers to seek information, as set out above.

I look forward to your reply, and for confirmation that appropriate actions are being taken by OFCOM or, if no action is taken at this stage, an explanation as to why not.

Yours sincerely