Schedule 11: Categories of regulated user-to-user services and regulated search services: regulations
This Schedule sets out the procedure for making and amending the regulations that establish the threshold conditions a relevant service must meet in order to be designated as a Category 1, Category 2A or Category 2B service.
	Paragraphs 1(1) and (3) state the Secretary of State must make regulations specifying threshold conditions for Category 1 and 2B relating to number of users, functionalities, and any other relevant characteristics and factors. Paragraph 1(2) states the regulations for Category 2A threshold conditions must relate to number of users, and any other relevant characteristics and factors.
	Paragraph 1(4) provides that these regulations must specify how a service may meet the relevant threshold conditions. It makes clear that, in order to meet the threshold conditions to become a Category 1 or 2B Service, a service must meet as a minimum at least one condition relating to the number of users or at least one condition relating to functionality. The regulations may specify that a service must meet a combination of conditions, for instance conditions relating to both the number of users and the functionalities on offer. For Category 2A Services, a service must meet as a minimum at least one condition relating to the number of users. This ensures that the factors which are set out on the face of the Act as being most important in determining whether it is proportionate to place additional duties on the provider of a user-to-user service or a search service will be reflected in each designation decision.
	Under sub-paragraphs (6) and (7) of paragraph 1, the Secretary of State, in making regulations under sub-paragraphs (2) and (3), for Categories 2A and 2B, must consider the likely impact the factors set out in the previous sub-paragraphs will have on the level of risk of certain types of harm.
	Paragraph 2 establishes the procedure for making the first set of regulations under paragraph 1. Sub-paragraphs (2), (3), and (4) of paragraph 2 set out that OFCOM must carry out research to inform the making of these regulations. This research must be carried out within six months of Royal Assent. However, for research in relation to Category 2A and 2B services, paragraph 2(10) allows for the Secretary of State to give OFCOM extra time to carry out the research, up to a limit of 18 months after Royal Assent. Extra time could be required if, for example, the Secretary of State determined that it was necessary to consider the effectiveness of the transparency reporting framework for Category 1 services before extending its scope.
	OFCOM must then provide advice to the Secretary of State, based on their research, as to what they consider would be the appropriate threshold conditions (paragraph 2(5) of Schedule 11). In respect of Category 1, 2A and 2B threshold conditions, OFCOM may advise that the regulations should include other characteristics or factors in addition to number of users (and, for user-to-user services, functionalities), and what those other characteristics or factors should be.
	If the regulations include provisions which differ in any material respect from what was advised by OFCOM, the Secretary of State must publish a statement explaining why they have departed from that advice (paragraph 2(8) of Schedule 11).
	After the regulations are made, OFCOM will be required to assess services which they consider are likely to meet the relevant threshold conditions against the threshold conditions set out in the regulations, and to establish a register of Category 1, Category 2A and Category 2B services (see section 94(1)). Services become subject to Category 1, 2A or 2B duties by virtue of being added to the relevant part of the register.
	Paragraph 3 establishes the procedure for updating the threshold conditions by amending or replacing regulations made under paragraph 1. Paragraphs 3(1), (2), and (3) state that regulations may only be amended or replaced by further regulations, once OFCOM have carried out further research.
	Paragraph 3(4) states that either OFCOM or the Secretary of State may initiate the carrying out of this further research and the research should be carried out to the depth that OFCOM consider appropriate.
	Paragraph 3(6) states that following further research being carried out, OFCOM must advise the Secretary of State whether or not, in OFCOM’s opinion, changes to the regulations are appropriate (and, if appropriate, what those changes should be). Paragraph 3(7) notes that OFCOM must publish this advice as soon as reasonably practicable after providing it.
	To ensure oversight of the process, paragraphs 3(8) and (9) impose duties on the Secretary of State to publish a statement explaining their decision if they take action which departs from OFCOM’s advice.