What is Ofcom?
The Office of Communications (Ofcom) is the UK communications regulator, overseeing the broadcasting, telecommunications and postal industries. Its principal duty is to regulate communications in the interests of consumers and citizens.
Communications Act 2003 c.21, part 1, section 3, available at: www.legislation.gov.uk/ukpga/2003/21/section/3 (retrieved 6 April 2023)
Ofcom is a public corporation, accountable to parliament, with the culture secretary being the responsible minister (except for postal services, where the business secretary is responsible).
Department for Digital, Culture, Media & Sport and Ofcom, The Office of Communications (Ofcom) Framework Document, Gov.uk, 9 August 2016, retrieved 2 May2023, www.gov.uk/government/publications/the-office-of-communications-ofcom-framework-document, paragraph 2.6
The culture secretary appoints the chair and non-executive members of its board through the public appointments process. Ofcom is funded through fees paid by the industries it regulates and is a net contributor to the Treasury, as it gives any proceeds from fines and penalties to the government (after retaining the amount needed to fund certain duties). 57 Ofcom, Annual Report and Accounts 2021 to 2022, 21 July 2022, retrieved 1 February 2023, www.ofcom.org.uk/__data/assets/pdf_file/0022/240727/annual-report-2021-22.pdf, p. 55
How has Ofcom changed over time?
Ofcom has a large remit and has gained substantial additional duties and powers over time. The body was first established by the Office of Communications Act 2002
Office of Communications Act 2002, available at: www.legislation.gov.uk/ukpga/2002/11/contents (retrieved 6 April 2003)
and then given its full range of early powers in the Communications Act 2003, 59 Communications Act 2003, available at: www.legislation.gov.uk/ukpga/2003/21/contents (retrieved 6 April 2023) when it replaced five different TV and radio regulators.
Ofcom gained powers to regulate video-on-demand services in 2010
Ofcom, Regulation of TV-like Video On Demand (VOD) Services’ Ofcom, 20 September 2010, retrieved 6 April 2023, www.ofcom.org.uk/tv-radio-and-on-demand/information-for-industry/on-demand/atvod-archives/vod-regulation
and the postal industries in 2011.
Postal Services Act 2011, c.5, part 3, available at: www.legislation.gov.uk/ukpga/2011/5/contents (retrieved 6 April 2023)
It acquired further powers in 2017, including the regulation of the BBC. 62 Digital Economy Act 2017, available at: www.legislation.gov.uk/ukpga/2017/30/contents/enacted (retrieved 6 April 2023) In 2020, Ofcom’s remit expanded again to cover regulation of video-sharing platforms such as YouTube. 63 Ofcom, Ofcom’s first year of video-sharing platform regulation, Ofcom, 20 October 2022, retrieved 6 April 2023, www.ofcom.org.uk/__data/assets/pdf_file/0032/245579/2022-vsp-report.pdf, p.7 Ofcom is also set to gain more powers under the planned Online Safety Bill, such as to fine companies that fail to meet a new duty of care to protect users from harmful content online (see below). 64 McCallum S, ’Tech firms told to do better on child abuse images’, BBC, 6 July 2022, retrieved 20 January 2023, www.bbc.co.uk/news/technology-62052185
What does Ofcom now do?
Ofcom’s wide-ranging functions and powers span economic regulation (such as the promotion of competition and the auctioning of radio spectrums) and content regulation (maintaining of a set of quality standards in TV). Ofcom does not generally resolve individual complaints, with the notable exception of complaints regarding TV or radio content, but may investigate if it receives many complaints highlighting a particular problem. Its main legal duties, and the methods it uses to meet them, are summarised in the table below and unless otherwise referenced set out in Section 3 of the Communications Act 2003 as amended: 65 Communications Act 2003, c.21, part 1, section 3, available at: NULLwww.legislation.gov.uk/ukpga/2003/21/section/3 (retrieved 6 April 2023)
|Phones, telecoms and the internet|
Further the interests of citizens in relation to communication matters, and further the interests of consumers in relevant markets.
Secure availability of a wide range of electronic communications services throughout the UK.
Provides consumer advice on coverage, how to access cheaper deals and information about the cheaper social tariff.
Imposes quality conditions (The General Conditions of Entitlement) with which all communication networks must comply, such as providing free calls to emergency services, minimum terms and information, clear pricing and equal treatment for vulnerable customers.
Provides a price safety net (the Universal Service Obligations), delivered through two companies (BT and KCOM) that are designated as universal service providers and must provide certain services (such as functional internet access or public phonebooth access) at certain prices when requested.
Runs a programme of research and engagement to promote media literacy.
|Ensure there is a universal postal service in the UK. 67 Postal Service Act 2011, c. 5, Section 29, available at: www.legislation.gov.uk/ukpga/2011/5/section/29 (retrieved 6 April 2023)||Requires Royal Mail to provide several essential services at a uniform price throughout the UK.|
|Ensure the most effective use of the UK’s wireless airwaves (the radio spectrum).||Manages the use of the spectrum, including running spectrum auctions.|
|TV, radio and on-demand video|
Protect viewers and listeners from harmful or offensive content.
Protect people from unfair treatment in programmes and from invasion of privacy.
Ensure the provision of quality TV and radio programmes that appeal to diverse audiences.
Maintains and enforces the Broadcasting Code, a set of standards broadcasters must comply with such as the 9pm ‘watershed’ for mature content.
Oversees certain companies designated as public service broadcasters (Channel 4, ITV and others) to make sure they have diverse and correct content.
Maintains a licensing regime for TV and radio providers.
Regulates the BBC’s standards, such as its handling of complaints, and judges its impact on competition.
The complexity of Ofcom’s remit and governance
Ofcom must also have due regard for a range of loosely defined aims such as encouraging innovation and preventing crime. Cumulatively, these responsibilities are complex and can conflict. When they do, Ofcom must resolve the conflict in a manner best fitting the circumstances and, if the case is important, publish an explanation. 69 Communications Act 2003 c.21, part 1, section 3, available at: www.legislation.gov.uk/ukpga/2003/21/section/3 (retrieved 6 April 2023)
The subjective nature of many of these aims and the complexity they generate has led Ofcom’s governance, and particularly the selection of its chair, to be drawn into political rows in recent years. 70 Allegretti A and Waterson J, ‘Paul Dacre pulls out of running to be next Ofcom chair’, The Guardian, 20 November 2021, retrieved 4 May 2023, www.theguardian.com/media/2021/nov/19/paul-dacre-pulls-out-of-running-next-ofcom-chair Given this complexity, the IfG has previously argued that the expansion of Ofcom’s remit makes it increasingly difficult to find any one individual with the necessary expertise to lead the organisation.
Ofcom and the Online Safety Bill
A key example of Ofcom’s expanding responsibilities is the Online Safety Bill, expected to become law in autumn 2023. This contains new rules for social media companies and search engines aimed at removing illegal content, protecting children from harmful content and giving adults more control over the content they see. 71 Department for Science, Innovation and Technology and Department for Digital, Culture, Media and Sport, ‘A guide to the Online Safety Bill’ Gov. Uk, 16 December 2022, retrieved 6 April 2023, www.gov.uk/guidance/a-guide-to-the-online-safety-bill
Ofcom will be appointed as the regulator for the online safety regime and will be given a new core duty of adequately protecting citizens from harm. It will do this by ensuring online services make appropriate use of systems and processes (such as those to allow users to report and remove harmful content) to keep users safe, 72 Ofcom, Online Safety Bill: Ofcom’s roadmap to regulation, Ofcom, 6 July 2022, retrieved 8 February 2023, www.ofcom.org.uk/__data/assets/pdf_file/0016/240442/online-safety-roadmap.pdf, p. 3 balanced against its duty to protect freedom of expression. It will gain the power to force companies to comply, impose fines of £18m or 10% of global annual turnover (whichever is higher) and block non-compliant services. Ofcom will publish codes of practice to help companies deal with these new requirements.