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April 30, 2024

Many of us will be familiar with the tragic cases that led to the creation of the Online Safety Act 2023 – legislation designed and enacted to prevent online harm. What many practitioners may not know is that the new Act creates a power for Coroners to be provided with information regarding social media use where that Coroner is investigating the death of a child.

On April 2nd 2024, the Chief Coroner issued guidance in response to the increase of cases that require evidence relating to the use of social media. The guidance helps Coroners and practitioners to understand the options and processes when seeking evidence relating to social media.

The two biggest issues for Coroners are addressed in the guidance: 1) whether to send a Schedule 5 notice to Ofcom (Office of Communications) or to seek evidence from the service directly and 2) what to include in a Schedule 5 notice.

The guidance can be found here https://www.judiciary.uk/guidance-and-resources/guidance-no-46-obtaining-information-regarding-social-media-use/#related_content

Approaching Ofcom vs approaching services directly

Coroners have wide-ranging powers under Schedule 5 Coroners and Justice Act 2009 (CJA), including the power to require a person or organisation to provide a written statement as directed by the Coroner.

When a coroner who is investigating the death of a child sends a Schedule 5 notice to Ofcom concerning services that Ofcom regulates, section 101 Online Safety Act 2023 will enable Ofcom to obtain relevant information from service providers to enable Ofcom to respond.

Coroners should attempt to obtain disclosure by agreement before issuing a formal notice under Schedule 5 CJA. Informal engagement with Ofcom beforehand is advisable so Ofcom can advise as to timeframes, reasonableness of requests and how best to structure requests.

However, the Coroner can seek information from services directly. It will be for the Coroner in each case to decide whether to approach Ofcom or the service. The guidance outlines factors that might make it advantageous for a Coroner to issue a Schedule 5 notice to Ofcom. In summary:

  1. Ofcom might be able to assist the coroner in formulating the notice in a way that gets only the relevant data;
  2. Ofcom could advise the coroner on how to frame a request to obtain data in a format that can be understood without the need for specialist analysis, eg instead of requesting the raw code, the Coroner could seek a description of how the system operates;
  3. Ofcom can contact multiple providers on a coroner’s behalf, which could reduce the administrative work for the coroner’s office.
  4. Ofcom might be able to advise on any limits to Ofcom’s power to obtain information relating to a request such as where information-gathering powers are limited because of barriers imposed by foreign law;
  5. Ofcom has enforcement powers relating to the s101 OSA notices that it issues to regulated services.

Drafting an effective Schedule 5 notice

Social media companies are likely to hold extensive material relating to an individual so requests could return large volumes of information. For a Schedule 5 notice to be effective, Coroners are advised to:

  1. Identify the child in connection with whose death a notice relates;
  2. Identify a particular service or various services of interest;
  3. Describe the information sought, including what personal information is needed. If there is personal information that is likely to be returned in the context of the request that is not relevant, confirm that such information can be omitted or redacted;
  4. Describe the timeframe within which the information is sought to enable a proportionate search to be conducted and to prevent the coroner from being overwhelmed with irrelevant information;
  5. Set a reasonable deadline for Ofcom to respond, which takes into account the time it will take for Ofcom to provide their own notice to the relevant services and obtain the information;
  6. Coroners should contact CoronersSupport@ofcom.org.uk to discuss any proposed Schedule 5 notice with Ofcom;
  7. Coroners should include their name and coroner area in all communications.

Given the increase in cases that require evidence relating to social media use, the guidance will be useful for practitioners when considering whether Ofcom can assist in obtaining the information and if so, how the Schedule 5 notice can be most effective.

Simran Kamal