Response to Ofcom's consultation on draft guidance for super-complaints under the Online Safety Act 2023

We have submitted a response to Ofcom’s consultation on its draft super-complaint guidance and provide the text of it below.

Introduction

The super-complaint process will be an important tool for civil society organisations to both help Ofcom identify significant areas for concern that cut across multiple platforms, as well as hold Ofcom to account where they have failed to take action. Given our previous concerns that the eligibility requirement was too limited in scope by failing to provide designations, it is welcome that the Department for Science, Innovation and Technology reflected these concerns in the final regulations to bring the regime into force and that Ofcom’s guidance provides the necessary clarity on those organisations that will be eligible to submit a super-complaint, including proposals to reduce the amount of time organisations who have already been deemed eligible from 30 days to 15 days.

Ofcom’s commitment to publish summaries of admissible complaints is also welcome, which will ensure greater transparency for the complaint process and will provide useful examples for organisations seeking to submit their own complaints.

However there are several areas that still require further consideration:

Scope

The draft guidance restates that super-complaints are not for individual content items and may concern harms arising from combinations of services. Ofcom should provide illustrative examples of admissible multi-service harms (e.g. cross-platform disinformation, scam networks, or emerging forms of harm) to ensure consistent application.

The broad reading of “significant harm” (paragraphs 2.41–2.42; Guidance 4.20), which encompasses societal harms and disinformation, as well as harms that fall outside of the Online Safety Act is welcome. This will future-proof the guidance when considering emergent harms not covered specifically by the safety duties in the Act itself. However we note that Ofcom will have no powers to investigate outside its remit and is therefore limited in this regard.

Eligibility

We note, as we did in our previous consultation response, the resource required for organisations to prove how they are representing their interests. Eligibility rules should enable, not exclude, credible NGOs and civil society groups. Stricter requirements risk excluding smaller organisations such as frontline or grassroots charities who work with survivors.

The interpretation of “expert status” (paragraph 2.30) as encompassing organisations focusing on harms with online dimensions is helpful. However a question remains about expertise in relation to broader social, democratic, or informational harms, and whether this means that if the complaint relates to societal matters the organisations must still show expertise in “core” OSA territory, or whether it means that online safety matters are extended by virtue of the super-complaints wider terrain (See draft guidance 3.17). Clarity on this would be welcome.

The streamlined eligibility process for repeat complainants (paras. 2.59–2.61) is particularly welcome, however Ofcom should also clarify how it will determine “material change in circumstance” to avoid unnecessary re-submissions.

Single service complaints

Super-complaints should be usable for both cross-platform and single-service harms. Harm is often felt acutely on single platforms due to both their design and/or terms of service, including moderation and reporting policies. For example, recent research by CCDH found that X was host to targeted antisemitic abuse against British Jews following the Manchester Synagogue attack. Civil society must be able to make complaints that are about individual platforms failing to get to grips with a harm that is proliferating particularly widely on their platforms, whether or not it is also being caused by the same bad actors who are active on many other platforms. A complaint may therefore be about X and it's failure to get a grip on harm occurring on its platform, which is then replicated in different ways across many platforms, leading to it becoming a systemic, cross-platform issue.

Ofcom states that single-service complaints must show “particular importance” (2.45), however this remains undefined. The guidance would be strengthened by a clearer definition from Ofcom about how they will measure this so that organisations can better understand the threshold, which will be a higher bar than for complaints that cut across services.

Evidence threshold

Ofcom’s principles-based approach to evidence (paragraphs 2.49 - 2.52; Guidance 4.21- 4.44) is positive, but the standards must be proportionate given the resources needed by civil society to gather data. Civil society organisations often rely on mixed-method evidence - survivor testimony, watchdog research, or academic collaborations, which should be explicitly recognised as credible.

The requirement for evidence to be “relevant, current, and objective” aligns with Regulation 4, but Ofcom should clarify that objectivity does not exclude qualitative or experience-based data. The guidance should highlight that smaller organisations should not be held to the same research-resource standards as large institutions.

Ofcom should also commit to using its statutory information powers to obtain supplementary data from platforms when credible issues are raised but external evidence is incomplete. The burden of evidence gathering should not fall on civil society alone: recognising that civil society organisations often play a vital role in raising flags about emergent harms that might be a symptom of systemic failures will be vital for this regime (and Ofcom’s wider approach to OSA enforcement) to function effectively .

While we acknowledge the risks of out-dated evidence, the suggested 12-month evidence window (Guidance 4.34) may not suit long-term or cumulative harms. Flexibility should be built in for longitudinal data or harms that manifest over time.

We welcome the acknowledgement from Ofcom that evidence submitted will require sensitivity, particularly where evidence may constitute illegal content (paragraph 2.52). It is crucial that Ofcom develop ways for organisations submitting super complaints to share their evidence with them in ways that are safe and preserve confidentiality.

Process

Ofcom recommends early engagement following on from other experiences of super complaints. However this must remain optional and not a barrier for less resourced groups who may not have the access to services that the larger, more established civil society organisations and charities have. In areas like election interference or whistleblower evidence, pre-contact with platforms may be unsafe or unrealistic. Furthermore, services could refuse to engage if they know that organisations are trying to submit a super-complaint against them, which would hinder civil society’s efforts to gather evidence and data. Ofcom should explicitly confirm that prior contact with services is not a precondition, and provide secure, confidential reporting channels.

The six-month and two-year restrictions (Guidance 4.3, 4.49) risk impeding timely responses to emerging harms, particularly during elections or as technology develops. Exemptions should be included for urgent harms to ensure the mechanism remains responsive.

Assessment of super complaints

We are concerned by the distinct lack of clarity around how Ofcom will be choosing to assess super complaints that are submitted to them, and how quickly they will task themselves with responding. There is a clear need for Ofcom to outline how they intend to assess complaints to avoid civil society engaging in resource-heavy evidence gathering without a clear indication of whether they will meet Ofcom’s standards.

Transparency

As already stated, we welcome the publication of admissible super-complaints (with redactions for sensitive material) and structured confidentiality protocols where necessary.

Ofcom should also consider periodic public summaries of inadmissible complaints, in anonymised form, to inform sector learning and to avoid burdensome evidence-gathering by civil society when a similar complaint has already been rejected.

Freedom of expression

Super-complaints must protect against both under and over-enforcement of online safety duties. We recognise and welcome the need for Ofcom to mitigate the risk of systemic over-removal of lawful speech and give due recognition to Article 10 of the ECHR.

However we also note that freedom of expression requires the state to create a safe speaking environment online. Super-complaints may, for example, legitimately tackle the issue of the silencing effect of under-control of or financial incentives for abusive speech.

We also note that there are positive obligations in relation to other fundamental rights, notably those protected by Articles 3 and 8 ECHR. Where super-complaints bring in these issues, freedom of expression should be balanced with these rights rather than given automatic priority.

Individual user redress

As acknowledged in 2.8 of the guidance, Ofcom does not have a role for dealing with individual complaints made by users. As such, we recognise that it is appropriate for the guidance to focus on their remit for assessing complaints made on behalf of a group. However, in light of particular campaigning efforts from organisations such as Safer Internet UK, the Revenge Porn Helpline, EVAW and Glitch, we note on record that there is a case for further consideration by the Government of the need for individuals to have access to redress, for example in cases where their intimate images have been shared non-consensually online, which is child friendly.