Section 104Reports by skilled persons

(1) OFCOM may exercise the powers in this section where they consider that it is necessary to do so for either of the following purposes—

• (a)
  assisting OFCOM in identifying and assessing a failure, or possible failure, by a provider of a regulated service to comply with a relevant requirement, or
• (b)
  developing OFCOM’s understanding of—

  • (i)
    the nature and level of risk of a provider of a regulated service failing to comply with a relevant requirement, and
  • (ii)
    ways to mitigate such a risk.

(2) But the powers in this section may be exercised for a purpose mentioned in subsection (1)(b) only where OFCOM consider that the provider in question may be at risk of failing to comply with a relevant requirement.

(3) Section 122 requires OFCOM to exercise the power in subsection (4) for the purpose of assisting OFCOM in connection with a notice under section 121(1).

(4) OFCOM may appoint a skilled person to provide them with a report about matters relevant to the purpose for which the powers under this section are exercised (“the relevant matters”), and, where OFCOM make such an appointment, they must notify the provider about the appointment and the relevant matters to be explored in the report.

(5) Alternatively, OFCOM may give a notice to the provider—

• (a)
  requiring the provider to appoint a skilled person to provide OFCOM with a report in such form as may be specified in the notice, and
• (b)
  specifying the relevant matters to be explored in the report.

(6) References in this section to a skilled person are to a person—

• (a)
  appearing to OFCOM to have the skills necessary to prepare a report about the relevant matters, and
• (b)
  where the appointment is to be made by the provider, nominated or approved by OFCOM.

(7) It is the duty of—

• (a)
  the provider of the service (“P”),
• (b)
  any person who works for (or used to work for) P, or is providing (or used to provide) services to P related to the relevant matters, and
• (c)
  other providers of internet services,

to give the skilled person all such assistance as the skilled person may reasonably require to prepare the report.

(8) The provider of the service is liable for the payment, directly to the skilled person, of the skilled person’s remuneration and expenses relating to the preparation of the report.

(9) Subsections (10) to (12) apply in relation to an amount due to a skilled person under subsection (8).

(10) In England and Wales, such an amount is recoverable—

• (a)
  if the county court so orders, as if it were payable under an order of that court;
• (b)
  if the High Court so orders, as if it were payable under an order of that court.

(11) In Scotland, such an amount may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(12) In Northern Ireland, such an amount is recoverable—

• (a)
  if a county court so orders, as if it were payable under an order of that court;
• (b)
  if the High Court so orders, as if it were payable under an order of that court.

(13) In this section “relevant requirement” means—

• (a)
  a duty or requirement set out in any of the following—

  • (i)
    section 9, 11, 26 or 28 (risk assessments);
  • (ii)
    section 10 or 27 (illegal content);
  • (iii)
    section 12 or 29 (children’s online safety);
  • (iv)
    section 14 (assessments related to the adult user empowerment duty set out in section 15(2));
  • (v)
    section 15 (user empowerment);
  • (vi)
    section 20 or 31 (content reporting);
  • (vii)
    section 21 or 32 (complaints procedures);
  • (viii)
    section 23 or 34 (record-keeping and review);
  • (ix)
    section 36 (children’s access assessments);
  • (x)
    section 38 or 39 (fraudulent advertising);
  • (xi)
    section 64 (user identity verification);
  • (xii)
    section 66 (reporting CSEA content);
  • (xiii)
    section 71 or 72 (terms of service);
  • (xiv)
    section 75 (deceased child users);
  • (xv)
    section 77(3) or (4) (transparency reports);
  • (xvi)
    section 81(2) (children’s access to pornographic content);
• (b)
  a requirement under section 83 to notify OFCOM in connection with the charging of fees (see subsections (1), (3) and (5) of that section); or
• (c)
  a requirement imposed by a notice under section 121(1) (notices to deal with terrorism content and CSEA content).