OFCOM have replied to me about https://PornBy.email.
Sadly, as detailed as the response is it still boils down to "We don't comment on individual services" so of no help at all till enforcement come knocking.
Hi Gareth,
Ofcom cannot comment or advise on the scope of specific services. However, to assist you further in your considerations, I draw your attention to the following provisions of the Online Safety Act. In relation to a Part 3 service, Paragraph 1 of Schedule 1 to the Act outlines:
"A user-to-user service is exempt if emails are the only user-generated content (other than identifying content) enabled by the service."
However, Paragraph 6 of Schedule 1 to the Act further clarifies that:
“a user-to-user service described in any of paragraphs 1 to 5 is not exempt if—
(a) regulated provider pornographic content is published or displayed on the service, and
(b) the service has links with the United Kingdom within the meaning of section 80(4).”
(See also section 4(2) and Paragraph 1 of Schedule 2 which includes a similar clarification.)
This means that in addition to considering whether or not the service may be in scope of Part 3, it would be advisable for you to consider whether the service may be in scope of Part 5 of the Act (i.e. a service on which pornographic content is published or displayed by the service provider, or a ‘Part 5 service’, which could be, for example, a pay-site where a studio producing pornography owns the service and uses it to make its content available). You may in particular wish to refer to the definition of ‘regulated provider pornographic content’ set out in section 79(2):
"pornographic content that is published or displayed on the service by the provider of the service or by a person acting on behalf of the provider, including pornographic content published or displayed on the service by means of—
(a) software or an automated tool or algorithm applied by the provider or by a person acting on behalf of the provider, or
(b) an automated tool or algorithm made available on the service by the provider or by a person acting on behalf of the provider."
In making any assessments about potential Part 5 scope, p. 7-13 of the Guidance may be most relevant. Paragraphs 3.4-3.18 give guidance on the meaning of published or displayed.
You may also wish to consider the definition set out in section 226 which explains who the ‘provider’ of a Part 3 and/or Part 5 service is under the Act.
We recommend you seek independent legal advice if you are unclear whether or not the service in question may be in scope of the Act. For clarity, Ofcom cannot pre-approve a service as compliant before it is launched. It is a service provider's responsibility to understand if it is in scope and ensure its service is compliant.
Kind regards,
Ofcom Supervision Team