THE KING (on the application of (1) Meta Platforms Inc. and (2) WhatsApp LLC) v THE OFFICE OF COMMUNICATIONS

A regulator’s general information-gathering power is not cut down by a separate statutory reporting regime where the regimes serve different purposes. The regulator must identify a lawful purpose and rationally assess what information it needs; the court reviews that assessment on conventional public law grounds. An express proportionality requirement remains a separate control on the exercise of the power.

A statutory impact-assessment duty arises only where the regulator considers a proposal important in the statutory sense, subject to review for rationality. Where proportionality is for the court to determine, the burden must be assessed against the marginal impact of the measure and a relevant baseline. Generalised evidence of burden may not establish disproportionality.

Meta Platforms Inc. and WhatsApp LLC, X Internet Unlimited Company, and TikTok Information Technologies UK Ltd each sought judicial review of information notices issued by the Office of Communications (OFCOM) on 10 February 2026. The notices required data about activity, content moderation, user exposure, appeals and user reports on their services.

The three claims were heard together on a rolled-up basis. The court considered permission on challenges concerning the statutory scope and purpose of OFCOM’s information power, impact assessments, apparent predetermination, compliance with published guidance, proportionality and Convention rights. The central question was whether the notices were lawfully issued and proportionate.

1. Statutory power and purpose. The court held that the information power in the Online Safety Act 2023 was not cut down by the separate transparency regime. The regimes served different purposes: the transparency regime required publication, while the notices sought information principally for OFCOM’s own regulatory use. Parliament did not intend the information power to remain unavailable until the transparency regime became operational. The statutory safeguards, including proportionality, remained relevant. The ultra vires and improper-purpose grounds were not reasonably arguable.
2. What OFCOM may require. Whether information is required under section 100(1) was an evaluative question for OFCOM, reviewable for rationality, rather than an objective precondition for the court to decide. OFCOM had to state a lawful purpose, but did not need to identify a particular future task: the listed purposes in section 100(6) were non-exhaustive and included research and preparing reports. The court separately considered whether the exercise was proportionate. Any defect in the reasons given under section 102(3)(b) would not have changed the outcome. Permission on these grounds was refused.
3. Impact assessments and other procedural grounds. The duty in section 7 of the Communications Act 2003 depended on a proposal appearing important in the statutory sense. Failure expressly to consider that question was not itself unlawful; the question was whether it was irrational for OFCOM not to treat the individual notices as important proposals. It was reasonably open to OFCOM to regard them as individual decisions. The court also held that it was highly likely the outcome would have been the same for each claimant if the assessment duty or guidance had been followed. Section 31(3D) of the Senior Courts Act 1981 therefore required refusal of permission. TikTok’s apparent-predetermination ground also failed the arguability threshold: the test required an objective assessment of all the evidence, and a regulator could have a strategic predisposition while retaining an open mind.
4. Proportionality and rights. The court applied the four-limb proportionality test associated with Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 and made its own assessment. The relevant burden was the additional impact of each notice over and above the providers’ existing business and regulatory obligations. The claimants’ evidence did not sufficiently quantify that differential burden or establish that the notices were unfairly disproportionate. The court also found no deprivation of property under Article 1 of Protocol No. 1; any control of use was minimal and proportionate. Permission on proportionality and Convention grounds was granted, but those claims were dismissed on their merits.

Permission was refused on grounds 1–7 and granted on grounds 8–9. The claims were dismissed on the grounds for which permission was granted.

Not stated in the judgment.