The Online Safety Act 2023 established the basis for creation of an online safety super-complaints regime. The process will allow for complaints about systemic issues (features or conduct of regulated services) to be raised with the regulator where those issues are, appear to be, or present a material risk of:
- significant harm to users or members of the public,
- significantly adversely affecting the right of users or members of the public to freedom of expression, or
- otherwise having a significant adverse impact on users or members of the public.
For the online safety super-complaints regime to be operational, the Secretary of State needs to make regulations setting out:
- the eligible entity criteria s.169(3) – the criteria a body must meet to be eligible to submit a super-complaint to Ofcom;
- the procedure for super-complaints s.170(1) and (2) – provision about procedural matters related to super-complaints.
The government expects super-complaints to cover systemic issues across services and processes that companies have in place, or, in exceptional circumstances, on one service. It says thay super complaints are an important part of the new framework, and will allow organisations to advocate for users, including vulnerable groups and children, to ensure issues affecting UK users or members of the public are brought to Ofcom’s attention.
The government consulted on policy proposals in late 2023. It sought views on proposed eligibility criteria: a pre-notification requirement; requirements on the form and manner of submissions; evidential requirements; requirements to avoid duplication of complaints; limitations on submissions; and requirements on Ofcom on receipt of a complaint and in relation to their response and timings for the process. It has now published a policy response to that consultation in tandem with laying the statutory instrument in Parliament.
Policy changes following the consultation
- Removing the statutory pre-notification period – this will eliminate the requirement for complainants to inform Ofcom 30 days prior to submission, cutting the overall timeline which means that entities will receive a response sooner.
- Reducing the initial assessment period for determining eligibility from 30 days to 15 days for organisations previously deemed eligible – this aims to ensure that entities can benefit from an expedited process for determining their eligibility, if their circumstances have not changed.
- Placing restrictions on Ofcom’s ability to pause the 90-day timeline for complaint consideration or the 15 or 30 day timeline for eligibility assessment – to ensure that the clock can only be paused in circumstances where Ofcom needs more information to be able to proceed. Ofcom is only able to stop the clock for as long as it takes to source relevant information from the entity.
- Expanding the eligibility criteria to include newer organisations that are experts in online safety matters, not just “experienced” ones that have a track record of publishing high-quality research and analysis or collaborating with other organisations – the government says that this is a crucial change which recognises the value that entities of all experience levels have in the online safety sphere.
- Altering the restriction on submitting multiple complaints within a 6-month period, allowing entities to ask Ofcom to consider a new complaint (complaint B) instead of their initial complaint (complaint A) – this ensures that where new issues arise they can be prioritised while ensuring that Ofcom can properly devote the time and resource needed to each complaint.
- Removing the requirement for entities to have consulted with a range of bodies, industry experts or academics – following stakeholder feedback, this has been removed to ensure that the requirements on entities are not overly onerous.
- Allowing Ofcom to accept part of a complaint if some of the matter is under consideration by another regulator – for example, in instances where online safety matters can be easily separated by another matter under consideration by a different regulator.
- Ofcom is required to acknowledge receipt of all super-complaints, not just complaints which have been submitted in line with its guidance.
- The regulations now also recognise the desire for entities to jointly submit complaints, by asking for a lead entity – this is in recognition that entities may want to collaborate and combine resources to submit a complaint and assist Ofcom by ensuring that there is one named lead entity that Ofcom can contact.
Ofcom will separately consult on guidance. The new regime comes into force on 31 December 2025.
