Sixth Report
Instruments of interest
Draft Online Safety (List of Overseas Regulators) Regulations 2024
1.These draft Regulations propose to designate overseas regulators with whom Ofcom may cooperate under the Online Safety Act 2023, including by disclosing online safety information to help those regulators exercise their functions or to support any criminal investigations or proceedings related to those functions. The Department for Science, Innovation and Technology (DSIT) says that at present Ofcom may only share information with overseas regulators under the Communications Act 2003, primarily to facilitate the carrying out of its own functions. This instrument would put wider co-operation and information sharing on a statutory footing, while Ofcom would retain full discretion over whether to do so.
2.The designated regulators are those of France, the Netherlands, Germany, Ireland, Australia as well as the European Commission. DSIT expects the list to be updated through subsequent instruments as the international regulatory environment develops. The United States (“the US”) does not currently have a single online safety regulatory framework or regulator; however, the Department told us that it would consider designating a regulator should the US develop one. In the meantime, Ofcom will continue to share information with public bodies in the US for its own regulatory purposes in line with relevant data protection policies.
3.We asked whether the designated regulators will reciprocate and share information to support Ofcom’s functions. DSIT explained that:
“Reciprocal information sharing arrangements are not currently consistent between those regulators that have been specified in this instrument and Ofcom. Some already have similar arrangements. For example, section 212 of the Australian Online Safety Act 2021 permits their eSafety Commissioner to share information with the authorities of a foreign government, such as Ofcom, in certain circumstances. Specifically, they can share information related to individuals safe use of social media and other designated services. They are also permitted to share information in order to support the overseas regulator in the enforcement of their online safety laws. Others are likely to have such arrangements in the future. For example, the government anticipates that as European nations specify their Digital Service Coordinators (DSCs),1 they are likely to include pathways to share information. Ofcom is well placed to receive information from DSCs as the EU has previously recognised the UK as providing adequate data protection in order to receive personal data related to its citizens, including data exchanges in the enforcement of laws.
Regardless of reciprocity, however, the government anticipates that Ofcom being able to share information and co-operate with other regulators will lead to international regulatory alignment, which is likely to reduce the regulatory burden on Ofcom as well as international counterparts. There may also be positive benefits resulting from Ofcom supporting overseas regulators in carrying out their online safety regulatory functions and cooperating with relevant criminal investigations or proceedings. This cooperation may address a source of harm for UK users, for example by preventing malign actors from disseminating suicide and self-harm content on regulated services.”
4.Asked specifically about reciprocity with regulators in the EU after Brexit, the Department explained that:
“This statutory instrument only relates to Ofcom’s new online safety functions under the Online Safety Act, which were not in place before the UK’s exit from the European Union. As there are different regulatory regimes across policy areas in the EU and within member states, Ofcom’s cooperation is determined on case-by-case basis. Ofcom does, however, have a proven track record of cooperating with EU regulators on electronic communication issues. In addition, Ofcom is a founding member of the global network of online safety regulators, demonstrating its commitment to international cooperation.”
5.We note that there are currently no specific reciprocal arrangements with the overseas regulators designated in this instrument. We welcome that the Department expects to update the list of regulators with whom Ofcom may cooperate as the international regulatory environment develops. We encourage the Department to seek reciprocity as part of that work.
Adoption Support Agencies (England) (Amendment) Regulations 2023 (SI 2023/1261)
6.These Regulations exempt providers of adoption support services from registering with the Office for Standards in Education, Children’s Services and Skills (Ofsted) if they are either: (i) working under contract with a registered adoption support agency or a registered adoption agency; or (ii) are providing counselling only to adults (aged 18 or over). The aim is to increase the number of providers of adoption support, thereby making it easier to access. The change acts on a recommendation of a July 2022 report by the Joint Committee on Human Rights.2
7.The Government argues that sufficient safeguards remain in place through other regulations, and because all employees of a voluntary adoption agency or a local authority adoption service must be “fit and proper”. Levels of voluntary accreditation with professional bodies are also high. Those providing ‘intermediary services’, defined as support provided to a person aged 18 or over adopted prior to 30 December 2005 in order to obtain information in relation to their adoption and to facilitate contact between them and their birth relatives, are not subject to the exemption and will still be required to register with Ofsted.
Financial Services and Markets Act 2023 (Panel Remuneration and Reports) Regulations 2023 (SI 2023/1273)
8.The Financial Services and Markets Act 2023 (FSMA) prohibited the financial sector regulators from remunerating members of certain statutory consultative panels, used by the regulators to help to understand the views of practitioners and consumers. This was intended to preserve panel independence by excluding employees or contractors of the regulators from those panels. However, FSMA also allowed HM Treasury (HMT) to make exceptions, and these Regulations allow (among other measures) panel members to be paid specifically for their work on some panels. The aim is to ensure that these panels can secure representation from an appropriate range of interests, including, for example, charities.
9.The Explanatory Memorandum says that “there has been no consultation because the measure disqualifying remunerated persons was introduced and debated during the passage of FSMA”. We have previously made clear that bill proceedings are not a proper substitute for a public consultation,3 and we reiterate that point. Moreover, in this instance it is the exceptions to the disqualifications that are the subject of these Regulations, not the disqualifications themselves. HMT was not able to provide us with any evidence that the exception provisions were discussed during the bill’s passage (other than the Minister’s introduction of the power to make them). The EM’s description of the ‘consultation process’ was therefore an example of particularly poor practice.
Public Interest Merger Reference (Telegraph Media Group Ltd) (Pre-emptive Action) Order 2023 (SI 2023/1300)
10.This Order has been made following a Public Interest Intervention Notice (PIIN)4 by the Department for Culture, Media and Sport (DCMS) under section 42 of the Enterprise Act 2002 in relation to the expected acquisition (“the merger”) of the Telegraph Media Group Limited (“the business”) by RedBird IMI Media Joint Venture LLC (“RedBird IMI”). DCMS says that the intervention was made due to public interest concerns about the “accurate presentation of news and free expression of opinion in newspapers”, should the merger go ahead. According to DCMS, RedBird IMI is a joint venture in which funding is ultimately provided by a company privately owned by a member of the United Arab Emirates government.
11.This Order imposes restrictions on the merger parties, so that the Secretary of State’s prior written consent is needed for certain actions. The restrictions include that ownership of the Telegraph Media Group must not be transferred or be integrated with any other business, and that there must not be significant change of the organisational structure or management responsibilities within the business, except where such change occurs in the ordinary course of business. The Order also requires that, as far as possible, key editorial staff are not transferred or removed from their positions.
12.Following the PIIN, the Competition and Markets Authority (CMA) and Ofcom will report to the Secretary of State on the merger by 26 January 2024 who will then decide whether to clear the merger. Options include whether to accept undertakings from the parties to mitigate public interest concerns or to refer the merger to a more in-depth review by the CMA. DCMS says that this Order seeks to prevent actions by the parties that could impede or prejudice this process.
1 [For a description of the role of Digital Service Coordinators, see: European Commission, The cooperation framework under the Digital Services Act, 6 November 2023.] https://digital-strategy.ec.europa.eu/en/policies/dsa-cooperation.
2 Joint Committee on Human Rights, The Violation of Family Life: Adoption of Children of Unmarried Women 1949–1976 (Session 2022–23, HL Paper 43).
3 See, for example, 38th Report (Session 2022–23, HL Paper 189) para 23.
4 Department for Culture, Media and Sport, ‘Public interest intervention notice and invitation to comment’ (30 November 2023): https://www.gov.uk/cma-cases/redbird-imi-slash-telegraph-media-group-merger-inquiry [accessed 7 December 2023].