Take 10 - 16 May 2025

Welcome to RPC's Media and Communications law update. This month's edition on key media developments and the latest cases.

Wikipedia takes the Online Safety Act to Court

The Wikimedia Foundation, which runs Wikipedia, is taking legal action against the Online Safety Act, claiming that the proposed regulations could hinder efforts to keep harmful content and misinformation off the platform. The OSA requires the regulator, Ofcom, to categorise platforms according to a number of factors, including how many users they have and what features they offer. Those designated 'Category 1' (the highest level) face stringent additional duties to keep users safe. The Wikipedia Foundation says that they support online safety goals but are seeking a judicial review of the so-called 'Categorisation Regulations' that they say will likely classify it as a Category 1 service, arguing that the criteria are too vague. Under this category, Wikipedia says it will be required to verify the identities of its volunteers, which it warns would damage its system of users who edit and review content on the site. Experts say this will not be the last legal challenge directed at the wide-ranging Online Safety Act.

R (Watson) v Chief Constable of Greater Manchester: High Court dismissed judicial review application against Chief Constable

On 17 April 2025, the High Court dismissed a judicial review over the Chief Constable of Greater Manchester Police's decision not to pursue the claimant's concerns over social media posts made by a political commentator on Twitter in February 2023 in relation to the murder of 16-year-old transgender girl Brianna Ghey. The claimant was concerned that the posts contained profane language and deliberate misgendering. However, Mr Justice Hill held that a post may only be deemed criminal if it is "grossly offensive" under the Malicious Communications Act 1988 or the Communications Act 2003 meaning that content that is merely offensive or in bad taste, even if "shockingly" so, does not satisfy this threshold. Hill J further acknowledged that the gender recognition debate is a very multi-faceted social issue which is bound to trigger different opinions in society therefore, any criminalisation of content may only occur following an objective assessment based on context. Finally, the posts are protected under Article 10 ECHR which includes the protection of speech that may "offend, shock, or disturb".  

Opting out? Government AI training proposal draws mixed views

The Government’s proposal to allow AI companies to automatically train their models on online content without prior permission from the rightsholder has been criticised by Tech and AI companies as “unworkable”. The Government is currently analysing responses to a recent consultation which assessed four proposed options for UK copyright as part of a wider review of the AI era. The four options which are presently under consideration include: maintaining current laws, strengthening copyright for creators, broad exemptions for AI firms or a fourth 'opt-out' model which is currently preferred by Government. This 'opt-out' option has raised concerns within the media and creative industries with fears it could undermine copyright protections. However, this is the option preferred by the Government. The proposal is also being opposed by publishers, certain creative industries and some leading AI companies.

Ofcom publishes children's online safety codes and risk assessment guidance

On 24 April 2025, Ofcom published the Protection of Children Codes and Guidance (the Codes), as part of the second phase of its three-phase process to implement the Online Safety Act 2023. In-scope service providers are now required to complete their first children's risk assessments by 24 July 2025, and subject to parliamentary approval of the Codes, those service providers will need to comply with the Codes from 25 July 2025.

Risk assessments require service providers to identify content which is harmful to children and use this information to determine how likely it is that children will or may encounter such harmful content, concluding whether their services are at negligible, low, medium or high risk for each kind of content. Once service providers have identified their risk level, they must consult the Codes and consider the recommended measures to be taken to mitigate and manage those risks for child users.

The Codes set out over 40 safety measures, including those relating to governance, accountability, effective reporting and settings and functionality. However, service providers are not compelled to take the recommended measures set out in the Codes, and instead may take alternative measures which must be sufficient to mitigate and manage risks of harm to children and should be appropriately recorded together with justification of how those measures are considered to fulfil the relevant duties under the Codes.

The Guidance follows Ofcom's publication of its Illegal Harms Codes and Guidance in December 2024 and its Guidance on Highly Effective Age Assurance in January 2025.  This latter guidance requires all services which allow pornography to have "highly effective" age assurance measures in place by July 2025 to prevent children from accessing such material. 

For more information, please see our full blog post on the Protection of Children Codes and Guidance, available here.  

Government consultation response on power for police officers to issue take down notice to online platforms promoting offensive weapons

Following various incidents involving offensive weapons including the recent Southport murders, the government is clamping down on knife crime in a bid to curb access to such weapons. As a start, the Home Office has published a report summarising responses to a consultation it launched in November 2024 where it proposed instilling authority on police officers to issue takedown notices to online platforms, marketplaces, and search engines where illegal weapons are promoted. As a result, the Government has now pledged to introduce legislation which will: (1) require online platforms to designate a senior UK based executive when requested by the police, failure of which will lead to a Civil Penalty Notice (CPN) of up to £60,000; (2) provide the police with the power to issue a Content Removal Notice (CRN) to online companies requiring the company to take down offensive content within 48 hours; and (3) provide the police with the power to issue online companies and their designated executives a CPN of up to £60,000 and £10,000 respectively if they fail to comply with a CRN. However, companies will be allowed to make representations before being issued with a CPN and may request the police review a CRN.

No need to re-seal amended claim forms in the MCL under the electronic working pilot scheme

In Beckett v Graham & Anor, Senior Master Cook considered whether there is a requirement for the Court to re-seal a claim form, amended without permission pursuant to CPR 17.1 prior to service, which has been issued through the electronic working scheme.  The electronic working pilot scheme in the High Court, allowing litigators to issue proceedings and file documents online 24 hours per day, all year long, is currently governed by PD 51O, which provides for electronic working to operate in select divisions and courts until 1 November 2025. The scheme covers various courts, including the Media and Communications List in the King's Bench Division. 

Senior Master Cook concluded there was no requirement to re-seal a claim form amended without permission, but that there is an obligation to file the amended claim form by endorsing the issued and sealed version with the Court.

Senior Master Cook criticised the clarity of the CPR, commenting that, "I consider that it is unfortunate the relevant provisions of the CPR are not expressed with the clarity which would have avoided this situation. As I have observed, the Rules should be clear and accessible to all who have cause to use them." He also noted that the Civil Procedure Rule Committee are considering re-drafting PD 51O and incorporating it into the Civil Procedure Rules. He concludes, "I would urge them to give this issue specific consideration".

At a meeting of the Civil Procedure Rule Committee on 7th February 2025, the Committee acknowledged that the electronic working pilot is due to expire on 1st November 2025 and declared that Master Sullivan will be leading the work on final proposals for a replacement practice direction, which will be implemented in place of extending the pilot PD.

Streamlining justice? Violent crime suspects may lose right to jury to clear court backlog

Ministers are supporting plans to remove the automatic right to jury trials for certain triable-either-way offences, including drug possession, theft, dangerous driving and some forms of assault in an effort to reduce pressure on the court system in England and Wales. If implemented, this would change the way these crimes can be reported after the time of arrest, because there is unlikely to be any risk of prejudice to the administration of justice when publishing information in relation to a crime which will not be before a jury. This reform is recommended by The Times Crime and Justice Commission and will aim to speed up justice and ease delays. Sir Brian Leveson, a former Court of Appeal Judge well known to media lawyers, is leading a review of the crown courts of England and Wales and is to report his findings in the coming months.

Quote of the fortnight

"It takes real courage to keep holding power to account in the face of growing legal threats. But it’s more important than ever that we do – and that we draw strength from the example of journalists around the world who have been reporting under pressure far greater, and for far longer, than we have." - Kai Falkenberg, General Counsel at the Guardian US on threats to press freedom in the US