Ofcom are revising the guidance on their enforcement of the prohibition on anti-competitive agreements and abuse of dominance under the Competition Act 1998 (CA98), which they enforce concurrently with the Competition and Markets Authority (CMA) in the communications sector.
The updates are largely procedural, reflecting post-Brexit developments, the Digital Markets, Competition and Consumers Act 2024 (DMCCA), and how competition enforcement has evolved over the past decade. Ofcom have historically brought relatively few CA98 cases. However, the updates indicate that Ofcom intend to be more visible and active in this area going forward. In this briefing, we outline the key themes and what they mean for media businesses in the UK.
Greater transparency in relation to complaints
The draft guidance notes that Ofcom may publish details of, or comment publicly on, matters under consideration during the initial assessment phase, including the outcome of that assessment. This means that businesses can no longer assume that a complaint would remain confidential prior to such time as Ofcom may decide to open an investigation. Any complaint should therefore be promptly escalated to the legal and communications teams to ensure a coordinated response. Businesses operating in high profile media markets should therefore be prepared and plan for early interest from stakeholders such as customers, content providers, advertising and platform partners, and the press, during Ofcom’s initial assessment phase.
Ofcom’s enhanced investigatory powers
The draft guidance incorporates Ofcom’s strengthened investigatory powers under the DMCCA, which include:
The power to require any individual or entity (regardless of whether they have a territorial connection to the UK) to produce information and documents held outside the UK.
The power to require individuals connected to the subject of an investigation to answer oral questions on any matter relevant to the investigation.
The powers to enter business premises without a warrant and enter and search business and domestic premises with a warrant.
It also notes the duty on stakeholders to preserve documents relevant to an investigation, and Ofcom’s ability to impose a financial penalty of up to 5% of worldwide turnover for any failure to comply with commitments or directions.
The inclusion of these powers in the draft guidance serves as a reminder that media businesses should treat engagement with an Ofcom investigation with the same degree of rigour as they would a CMA investigation.
Importance of responding properly to Ofcom information requests
The draft guidance expressly notes that Ofcom may take enforcement action for any failure to provide an accurate and complete response to an information request by the deadline. With media businesses, where information typically sits across numerous teams/functions, and even across different entities and jurisdictions, it is critical that systems and processes are in place to facilitate effective internal coordination when responding to formal Ofcom requests for information.
Clarity on disclosure and access to the file
The draft guidance notes that Ofcom will issue a Letter of Facts (a document setting out the material facts that Ofcom believe have been established, for the parties to comment on prior to Ofcom reaching a decision) where Ofcom intend to rely on evidence on the file that was not relied upon in the Statement of Objections, or that was relied on for a different purpose.
Ofcom will manage access to the file on a case-by-case basis, depending on the number of parties under investigation, the volume of confidential information, and the number of confidential third-party documents on the file. Parties are expected to cooperate by making reasonable requests and by providing prompt, specific and reasoned confidentiality representations.
Procedural strategy is therefore likely to become increasingly important, and parties that engage early on disclosure, confidentiality and evidential issues will be better placed to shape Ofcom’s investigative process.
New settlement discounts for non-cartel conduct
The existing guidance specifies settlement discounts for cartel conduct of up to 20% pre-Statement of Objections, and up to 10% post-Statement of Objections. In line with the CMA’s current practice, the draft guidance adds settlement discounts for non-cartel conduct (ie, abuse of dominance) of up to 40% for pre-Statement of Objections and up to 25% post-Statement of Objections. These figures are indicative, not conclusive. Nevertheless, such discounts are likely to make early settlement an important strategic consideration in many cases and emphasise the potential gain in assessing the strength of Ofcom’s case before a Statement of Objection is issued.
Sustainability collaborations
The draft guidance also confirms Ofcom’s alignment with the CMA’s approach to assessing environmental sustainability agreements, stating that Ofcom will have regard to the CMA’s guidance on sustainability agreements. Ofcom also encourage businesses to make use of the CMA’s “open-door” policy, which allows businesses considering environmental sustainability collaborations to seek informal guidance from the CMA where there is uncertainty over the application of competition law. Media businesses considering industry-wide environmental collaborations where competition law issues are not straightforward may therefore benefit from engaging with the CMA at an early stage.
Practical implications for media businesses
The final guidance is due to be published in spring 2027. Given that Ofcom will be expecting businesses to be investigation ready, media businesses should now be reviewing their operational capability and ensuring that they have:
A clear protocol for handling competition complaints.
Appropriate document preservation procedures that can be activated quickly across functions and jurisdictions.
A defined process and ownership for responding to formal information requests, and the ability to coordinate responses across functions.
The ability to assess, at an early stage, whether the benefits of settlement outweigh the costs and risks of contesting an investigation.
How we can help
If you would like to discuss the implications of the draft guidance for your business, or to review your existing compliance arrangements, please get in touch with a member of our competition team.
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