DSIT consultation on super-complaints for the Online Safety Act - Which? response

We welcome the opportunity to respond to this consultation, and agree with its aim to assist in developing regulations that are workable and fit for purpose. In this response, we refer to the Online Safety Act as ‘the Act’, and all statutory references are to provisions of the Act unless otherwise stated. We are copying this response directly to OFCOM in addition. 

Which? has a substantial amount of experience in relation to super-complaints. The Consumers’ Association is a designated body for the purposes of consumer super-complaints under section 11 of the Enterprise Act 2002 (goods and services), section 234C of the Financial Services and Markets Act 2000 (financial services), and section 68 of the Financial Services (Banking Reform) Act 2013 (payments). 

We have submitted nine super-complaints, including to the Competition and Markets Authority (‘CMA’), the Office of Rail and Road and the Payment Systems Regulator (‘PSR’). 

As the Consumers’ Association, we are also a private designated enforcer of consumer law under Part 8 of the Enterprise Act 2002. 

We are submitting this response as a PDF copy by email as well as via the Qualtrics survey tool. 

We ask the government to bear in mind, as highlighted further below and frequently during the passage of the Act, super-complaints constitute the only redress option for online harms within the scope of the Act that is external to providers (other than if initiated independently by OFCOM). There is as yet no online safety ombudsman, other collective redress or independent individual complaint system or specific right of legal action for breaches of the Act. In our view this strengthens the case in the public interest for these regulations to be more permissive and enable super-complaints on any relevant issues from a wide range of organisations. 

In addition, we would welcome clarification as to whether the government is proposing two sets of regulations or just one. In particular, on each issue mentioned in the consultation, is the government proposing to exercise its powers regarding the substance of eligibility criteria under section 169(3) or on procedural matters under section 170(1)? We note also in this respect that regulations made under section 169(3) must be made according to the affirmative procedure, and procedural regulations under section 170 made according to the negative procedure. 

We would appreciate the opportunity to be consulted further on the wording of draft regulations in advance of them being laid. 

In addition, we note that section 171 does not include a specific consultation requirement on OFCOM regarding draft guidance on super-complaints, but we would urge them nonetheless to consult as widely and thoroughly as possible. 

We would suggest that the government commits to reviewing the super-complaints regulations regularly, and in the first instance no later than four years after they come into force, especially in the light of OFCOM’s developing experience on its Codes of Practice, which must be taken into account on dealing with super-complaints (under section 50), as in relation to other matters. 

We also ask that the government consider ensuring that the importance of super-complaints is mentioned in its general guidance to be issued to OFCOM under section 176.