Movement for an Open Web (“MOW”) has applied to join Clean Up the Internet (“CUTI”) in its legal challenge over Ofcom’s refusal to comply with Freedom of Information Request’s (“FOI’s”) seeking basic information about its dealings with major tech companies[1]. CUTI and MOW cite concerns over the transparency and accountability of the regulator enforcing the Online Safety Act 2023 (“OSA”)[2].
Ofcom refused to disclose meeting dates, attendees, consultation inputs, and whether fines issued under OSA had been paid. MOW’s concern is that, by preventing access to such information, Ofcom is preventing Parliament, civil society, and other regulated businesses from being able to understand and scrutinize how regulatory decisions are being made[3]. In the context of harm to children, Members of Parliament and the House of Lords have expressed regret over the limited number of actions that have meaningfully been put in place to align with the aims of the OSA[4].
The regulator argues that it is exempt from disclosing certain information and hides behind s. 393 of the Communications Act 2003 (“CA”), which prohibits the release of business information obtained in the exercise of its statutory powers. The privacy regulator, the Information Commissioner’s Office (“ICO”), upheld Ofcom’s refusal to release information.
CUTI and MOW claim that the ICO’s decision allows Ofcom’s position to rest on an incorrect and wide interpretation of s. 393 CA. The interpretation of s. 393 CA has been addressed in previous cases, which MOW refers to in its application.
The FOI’s requested information on the administrative activities of certain companies, their interactions with Ofcom, or enforcement by the regulator. These issues plainly fall outside the scope of the true reading of s. 393 CA, which seeks to protect information that, if released, may prejudice the commercial affairs of a business.
In refusing to disclose this information, Ofcom is dressing up its own affairs and obligations as those of the companies involved. As discussed in a recent MLex article, MOW argues that the regulator cannot wrongfully construct the law in order to shield its own regulatory activity from scrutiny[5].
The case is scheduled to be heard by the first-tier Tribunal dedicated to regulatory disputes on 26 February, and Ofcom is joining as an intervener. MOW expects the outcome to influence how transparent Ofcom must be in discharging the duties entrusted to it under the OSA and hopes to reveal how the interests of major tech companies are being weighed against those of users, smaller businesses, and society [6].
Preiskel & Co advises on competition law, abuse of dominance and regulatory matters affecting digital markets. For enquiries regarding section 393 of the Communications Act 2003, Online Safety Act 2023 and conduct or media sector disputes, contact the firm’s antitrust practice.
Please contact Tim Cowen if you have any questions.
The material in this article is only for general review of the topics covered and does not constitute legal advice. No legal or business decision should be based on its content. This article is written in the English language. Preiskel & Co LLP is not responsible for any translation of all or part of its content into any language.
[1] See Movement for an Open Web | Home – Movement For An Open Web
[2] Clean up the Internet – tackle fake and anonymous social media accounts
[3] See Ofcom challenge (2 February 2026 MLEX article).pdf
[4] See Protection of Children Codes of Practice – Hansard – UK Parliament
[5]See MLex UK legal challenge over Ofcom’s transparency widens ahead of hearing.pdf
[6]See Meta, Google Plotted Together; Teenagers were the Target | Nasdaq and https://arstechnica.com/tech-policy/2024/08/google-and-meta-ignored-their-own-rules-in-secret-teen-targeting-ad-deals/ and Google Suggests Buyers Target Teens, Against Policy