What powers does Ofcom have?
We welcome the fact that the draft Bill follows the standard practice of handing over decisions on implementation of legislation to the appointed regulators, though we reiterate our concerns about the powers of the Secretary of State. Although there are significant requirements that OFCOM will need to meet with regard to drafting, consulting on and implementing codes of practice and guidelines, these can be relatively high level, giving companies flexibility to take the steps necessary to meet the regulatory requirements – provided that there is some obligation on them to act reasonably or to take appropriate measures. Much of the groundwork done to date by the ICO “safety by design” guidelines can be built on here, as well as the work OFCOM itself has carried out under its video-sharing platform powers.
Given the upfront obligations on OFCOM with regard to bringing forward evidence to support secondary legislation to include specific harms within the regime, there are legitimate concerns re the capability and capacity it has to do this at pace, even within the major recruitment drive that it now has underway.