Online Safety Act 2023

38 Duties about fraudulent advertising: Category 1 services U.K.

(1) A provider of a Category 1 service must operate the service using proportionate systems and processes designed to—

(a) prevent individuals from encountering content consisting of fraudulent advertisements by means of the service;

(b) minimise the length of time for which any such content is present;

(c) where the provider is alerted by a person to the presence of such content, or becomes aware of it in any other way, swiftly take down such content.

(2) A provider of a Category 1 service must include clear and accessible provisions in the terms of service giving information about any proactive technology used by the service for the purpose of compliance with the duty set out in subsection (1) (including the kind of technology, when it is used, and how it works).

(3) In relation to a Category 1 service, an advertisement is a “fraudulent advertisement” if—

(a) it is a paid-for advertisement (see section 236),

(b) it amounts to an offence specified in section 40 (construed in accordance with section 59: see subsections (3), (11) and (12) of that section), and

(c) it is not regulated user-generated content (see section 55) in relation to the service.

(4) If a person is the provider of more than one Category 1 service, the duties set out in this section apply in relation to each such service.

(5) In determining what is proportionate for the purposes of this section, the following factors, in particular, are relevant—

(a) the nature, and severity, of potential harm to individuals presented by different kinds of fraudulent advertisement, and

(b) the degree of control a provider has in relation to the placement of advertisements on the service.

(6) In the case of a Category 1 service which is a combined service, the duties set out in this section do not extend to—

(a) fraudulent advertisements that may be encountered in search results of the service or, following a search request, as a result of subsequent interactions with internet services, or

(b) anything relating to the design, operation or use of the search engine.

But if the service is also a Category 2A service, the duties set out in section 39 apply as well as the duties set out in this section.

(7) The duties set out in this section extend only to the design, operation and use of a Category 1 service in the United Kingdom.

(8) For the meaning of “Category 1 service”, see section 95 (register of categories of services).

Commencement Information

I1 S. 38 not in force at Royal Assent, see s. 240(1)

I2 S. 38 in force at 10.1.2024 by S.I. 2023/1420, reg. 2(l)