Ofcom could face judicial review claim

Ofcom, the UK communications regulator, is under scrutiny as it faces the threat of a judicial review due to its alleged failure to intervene on platforms that host non-consensual intimate images and child sexual abuse material (CSAM). These problematic forums reportedly categorise intimate images of women and girls by geographical location, including specific towns, villages, and even university accommodation. This situation has prompted concern from various advocates, leading to a significant legal challenge.

Leigh Day, a human rights law firm, is representing a survivor of intimate image abuse, referred to as Jane, along with the End Violence Against Women Coalition (EVAW) in this legal effort. Jane has taken steps to address the issue directly with Ofcom, calling on the regulator to use its enforcement powers to tackle the platforms perpetuating this abuse. Jane stated that the “responsibility for overseeing these sites and ensuring they comply with their legal duties under the Online Safety Act 2023 rests with Ofcom,” adding that their inaction feels like a "turning a blind eye" to the abuse she has encountered.

In the past year, Jane formally requested that Ofcom open an investigation into the platforms responsible for hosting non-consensual depictions of her and other women. She urged Ofcom to take immediate action, asserting the need for accountability in a landscape where such abuses create “a particularly harmful form of degradation and humiliation” for victims. Ofcom had acknowledged Jane's case, mentioning that it is “considering any appropriate next steps,” and affirmed that it possesses “a broad range of enforcement powers” which it will utilise when necessary.

However, the solicitors at Leigh Day, Tessa Gregory and Claire Powell, argue that Ofcom has not met its obligations. They have sent a Pre Action Protocol Letter to Ofcom outlining their intention to seek a judicial review on the basis that the regulator has failed to uphold its own guidance, thereby breaching its commitment to protecting women and girls online. Together, Jane and EVAW assert that Ofcom's inaction constitutes a systemic failure that endangers the safety of women and girls both online and offline, particularly given the alarming nature of these forums.

EVAW has long engaged with Ofcom regarding the Online Safety Act 2023, voicing concerns about how the legislation would address the safety of women and girls. They contend that Ofcom’s lack of decisive action compromises its commitments under the law. The coalition referenced how the ongoing failure to intervene allows a “collector culture” to thrive, which perpetuates misogynistic abuse and poses serious safety risks.

Jane's experience illustrates this troubling trend: "Despite repeated attempts to report and flag these harmful sites to Ofcom, these sites have continued to operate. The burden has fallen on me to push for stronger regulation." Her depiction of how such platforms commodify women’s images calls for immediate attention. Janaya Walker, Interim Director of EVAW, expanded on this sentiment, emphasising that “image-based abuse is a violation of women and girls’ rights," and highlighted the pressing need for tech platforms to take responsibility.

According to the letter from Leigh Day, Ofcom’s inaction violates several important rights, including Jane’s human rights under Articles 3, 8, and 14. The watchdog is now being urged to confirm whether an investigation has been initiated while providing clarity on its decision-making process regarding these sites.

The urgent question remains: can Ofcom effectively fulfil its role in protecting vulnerable communities online? Jane is also working with Mishcon de Reya in her pursuit of justice, seeking further action against platforms that continue to violate terms of service. Claire Powell warns, “Ofcom and the UK government must live up to their promises to tackle violence against women and girls.” This case could be pivotal in shaping the future of regulatory action on such damaging online content and its implications for the safety of women and girls in the UK.