Part 11: Supplementary and General Providers’ judgements about the status of content Section 192: Providers’ judgements about the status of content
This section clarifies how providers of Part 3 services are to approach judgements (human or automated) about whether content is content of a particular kind (such as illegal content, content that is harmful to children, etc), when their risk assessments or systems and processes for compliance with the Act involve such judgments. In particular, it makes provisions about how questions of mental state and defences are to be approached when considering whether content is illegal content or a fraudulent advertisement.
	Subsection (2) requires that such judgments must be made on the basis of all the relevant information that is reasonably available to a provider.
	Subsection (3) specifies factors that are particularly relevant to the question of what information is "reasonably available" to a provider. It makes clear that the requirement in subsection (2) applies both to judgements made by human moderators and those made by automated systems and processes, but that the information reasonably available to an automated system or process might be construed to be different to the information reasonably available to human moderators.
	Subsections (5), (6) and (7) apply specifically to judgements about whether content is illegal content or a fraudulent advertisement.
	Subsection (5) and (6) require providers to treat content as illegal content or a fraudulent advertisement if, on the basis of all information reasonably available to the provider, there are reasonable grounds to infer all the elements - including mental elements such as intention - necessary for the commission of a relevant offence are present, and there are not reasonable grounds to infer a defence may be relied upon.
	Subsection (7) makes provision for judgements about whether content that is generated by bots is illegal content or a fraudulent advertisement, including in particular how providers should consider mental elements and defences relating to content generated by bots. Section 55(4) of the Act makes clear that content generated by bots can, in certain circumstances, be ‘user-generated content’ for the purposes of the Act, and so can be in-scope of Part 3 services’ duties.
	Subsection (8) clarifies that when OFCOM consider a provider’s compliance with making content judgements, it may take into account whether providers’ judgements follow the approaches set out in this section (including judgements made by means of automated systems or processes, alone or together with human moderators).