Schedule 3: Timing of providers’ assessments Cross-cutting duties Section 33: Duties about freedom of expression and privacy
This section sets out the freedom of expression and privacy duties that apply in relation to all providers of search services (see section 22 for the equivalent provisions relating to user-to-user services). The term ‘freedom of expression’ is defined in section 236 and the definition is, where appropriate, aligned with that in the European Convention on Human Rights.
	Subsection (2) places a duty on all providers of search services to have particular regard to the importance of protecting users’ and interested persons’ legal rights to freedom of expression when deciding on and implementing steps to comply with their safety duties.
	Subsection (3) places a duty on providers of all regulated search services subject to the safety duties to have particular regard to the importance of protecting users from breaches of law concerning their privacy when deciding on and implementing safety measures to comply with their duties. This encompasses existing obligations on service providers regarding users’ privacy under data protection law, in particular the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003, as well as common law rights such as those relating to private and confidential information. The regulator which enforces obligations which arise under data protection law is the Information Commissioner’s Office.
	Service providers can comply with duties in subsections (2) and (3) by following steps in OFCOM’s codes of practice. Under paragraph 10 of Schedule 4, OFCOM are required to design recommended steps to be included in codes of practice in light of the importance of protecting users’ legal rights to freedom of expression and protecting users’ privacy, and, where appropriate, they should incorporate protections for the same. Where service providers take alternative measures to those set out in the codes of practice, they are also under an obligation to ensure that they have particular regard to the importance of freedom of expression and user privacy. OFCOM are obliged to consult with the Information Commissioner when preparing the codes of practice (see section 41(6)(g)).