United Kingdom: Closed consultation on Ofcom guidance on content communicated "publicly" and "privately" under the Online Safety Act

On 23 February 2024, the Office of Communications (Ofcom) closed the consultation on the guidance on record keeping and review under the Online Safety Act. Service providers will initially have to make their own assessment of whether content is communicated "publicly", but should start with the factors set out in section 232 of the Act. The Act empowers Ofcom to include measures in a Code of Practice that describe the use of various types of "proactive technology" for compliance with certain obligations, including content identification, user profiling, and behaviour identification technologies. There are limitations on these powers, particularly in relation to the analysis of user-generated content and privately communicated metadata, and certain types of content, such as emails and SMS messages, are excluded from these proactive technology measures regardless of whether they are communicated publicly or privately. The guidance emphasises that the determination of whether content is "publicly" or "privately" communicated under the Act focuses on the manner of communication rather than the private nature of the content itself and requires providers to assess this based on available information, statutory factors, and Ofcom's criteria, with the understanding that these assessments may evolve.