New Chief Coroners Guidance on Obtaining Information Regarding Social Media Use
On 2 April 2024, the Chief Coroner introduced new guidance (No. 46) surrounding the obtaining of evidence regarding social media use. This intersects with the Online Safety Act 2023 coming into force on 1 April 2024.
As background, Schedule 5 of the Coroners and Justice Act 2009 gives a coroner the power to require the production of evidence or documents that relate to an investigation. Such notices can be sent directly to social media providers, or to the Office of Communications (Ofcom), and can be issued in connection with the death. However, Ofcom can only provide information that it holds or controls, so its information is limited.
Coroners may face difficulty in establishing to whom Schedule 5 notices should be sent to in order to obtain information about social media use. They may also struggle to frame notices in a way that elicits the most useful information, unless they are advised by someone with knowledge of social media and its evolving trends.
To assist coroners accessing social media information that is relevant to an investigation into the death of a child, the Online Safety Act (OSA) 2023 includes new provisions extending the information that can be obtained and disclosed by Ofcom to coroners.
Section 101
Section 101 grants Ofcom the power to obtain the relevant information from service providers in respect of a living person’s use of a regulated service that is linked to an investigation into a child’s death (e.g. someone’s social media account that demonstrates bullying of a deceased child), or the use of a regulated service by the child whose death is under investigation (e.g. where a child has been exposed to harmful content via a social media platform’s algorithms).
Examples of information Ofcom can obtain from regulated services include:
- Content encountered by the child by means of the service;
- How the content came to be encountered by the child (including the role of algorithms or particular functionalities);
- How the child interacted with the content (for example, by viewing, sharing, or storing it or enlarging or pausing on it); and
- Content generated, uploaded, or shared by the child.
Section 163
Under this provision, Ofcom may prepare a report for use by the coroner following the receipt of a Schedule 5 notice and can do so using its s101 powers to require regulated services to provide information that may assist with Ofcom’s report.
Practical considerations
Coroners have previously been advised (Guidance No. 44) that they should only use Schedule 5 notices to compel disclosure where the disclosure is necessary and, unless there are exceptional circumstances, should attempt to obtain the disclosure by agreement before issuing a notice. To facilitate Ofcom exercising their s101 OSA powers, coroners will have to issue a formal Schedule 5 notice.
The new guidelines advise informal engagement with Ofcom beforehand to discuss the reasonableness of the request, the coroner’s proposed timeframe, and how to structure the request so the coroner can obtain relevant, sufficient, and proportionate information, based on Ofcom’s knowledge and experience of the sector. Ofcom can contact multiple providers on a coroner’s behalf, which increases administrative efficiency, and can advise the coroner on how to frame the request so the information can be understood without the need for specialist analysis. For example, instead of requesting the code for a social media company’s recommender system, it might be preferable in a particular case to seek a description of how the recommender system operates.
Coroners will need a adopt a case-by-case approach as to whether they choose to seek information from services directly or to approach Ofcom, weighing the benefits of each. Some investigations may already have contact with a regulated service through Interested Persons, making it possible to obtain information directly without difficulty, for instance, or Ofcom’s information gathering powers may be limited by barriers such as foreign law.
The new guidance also advises coroners to be mindful that social media companies are likely to hold extensive material about any relevant individual and that requests could return large volumes of information. In order to be effective, Schedule 5 notices should therefore:
- Identify the child in connection with whose death a notice relates;
- Identify a particular service or various services of interest (this information is likely to be available to coroners through discussions with the family and/or other Interested Persons);
- 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;
- 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; and,
- 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.
Commentary
The new guidance is a big step forward in a world of growing technology where social media may play a part in the investigation into a death. There is a concern, however, in limiting Ofcom’s s101 powers to investigations into the death of a child, rather than any death. Although coroners can still contact social media providers directly for information about an adult’s social media use, the efficiency of an investigation into the death of an adult may be limited in lacking the ability to delegate this to Ofcom under the OSA. Whether this is extended in the future is yet to be seen, but until then, the guidelines are a welcome improvement to the inquest landscape that recognises the prevalence of social media in the lives and deaths of young people.
